Filed 8/25/26 Save Mount Diablo v. City of Pittsburg CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION TWO
SAVE MOUNT DIABLO,
Plaintiff and Respondent,
A167589
v.
CITY OF PITTSBURG, et al., (Contra Costa County Super.
Ct. No. CIVMSN21-0462)
Defendants and Appellants;
DISCOVERY BUILDERS, INC., et
al.,
Real Parties in Interest and
Appellants.
Plaintiff Save Mount Diablo (SMD) brought this action under the
California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000
et seq.), challenging defendant City of Pittsburg’s certification of an
environmental impact report (EIR) for a residential subdivision project and
its adoption of ordinances approving the project. The trial court found the
City of Pittsburg (City) violated CEQA and issued a writ of mandate
compelling the City to set aside the EIR certification and project approvals,
and that decision was not appealed.
SMD filed a memorandum of costs and a motion for attorneys’ fees.
The City and the real party in interest, project applicant Discovery Builders,
1
Inc. (Discovery), moved to strike or tax costs and opposed the motion for
attorneys’ fees. The trial court denied the motion to strike or tax costs and
granted SMD’s motion for attorneys’ fees in substantial part, ordering the
City and Discovery to pay $663,004.20 in attorneys’ fees. The City and
Discovery appeal from these orders on fees and costs.
We affirm.1
FACTUAL AND PROCEDURAL BACKGROUND
The Annexation and Development Project and CEQA Review
The Faria/Southwest Hills Annexation Project (Project) involves a
proposed residential development of up to 1,500 units on 606 acres of
unincorporated hills southwest of the current municipal boundary of the City.
The Project includes a general plan amendment, a change in prezoning
designations, adoption of a master plan, approval of a development
agreement, and initiation of annexation proceedings.
In 2011, a draft initial study and mitigated negative declaration was
released, but following review of public comments, it was determined that
changes to the Project and additional environmental review would be
necessary. In 2014, a notice of preparation (NOP) of a programmatic EIR
was circulated. In response to comments to the NOP, the applicant decided
to modify the Project again.
In 2017, a new notice of preparation of an EIR for the Project was
circulated. In 2018, a draft EIR was released. A partially recirculated draft
EIR was released in 2019. In July 2020, a final EIR was released. Following
release of the final EIR, Discovery proposed construction of at least 150 rent-
1 We also grant SMD’s motion for judicial notice filed December 16,
2025.
2
restricted accessory dwelling units (ADUs) in addition to the original 1,500
units.
In February 2021, the City Council certified the EIR, and in March
2021, the City Council completed initial Project approvals.2
SMD Successfully Challenges the EIR and Project Approvals
On March 30, 2021, SMD filed a verified petition for writ of mandate
and complaint for injunctive relief, seeking to vacate and set aside the
certification of the EIR and approval of the Project. SMD alleged two causes
of action: (1) violation of CEQA and (2) violation of state planning and zoning
law and the City’s zoning code.
In December 2021, the trial court heard oral argument on the petition
and took the matter under submission.
On February 10, 2022, the trial court filed a 37-page statement of
decision granting SMD’s petition for writ of mandate and “compelling the
City to set aside the project approvals and the certification of the [final ]EIR.”
The court found the City violated CEQA in four ways: “1. The Project
description fail[ed] to include the 150 ADUs; [¶] 2. The EIR fail[ed] to
describe the baseline of biological resources, specifically special status plant
species; [¶] 3. The EIR fail[ed] to consider the water supply impact based on
the 1,650 units. [¶] 4. The discussion of air pollution impacts and mitigation
measures [wa]s too vague.”
2 On February 22, 2021, the City Council approved resolutions to
amend the City’s general plan and amend the boundaries of the City. On
March 15, 2021, the City adopted ordinances to amend its zoning map,
approve a master plan, and approve a development agreement.
3
The court rejected many of SMD’s arguments.3 It also noted the EIR at
issue was intended as a first-tier, program-level EIR, and some of the issues
raised by SMD would need to be addressed at the next tier of environmental
review when there would be more specific development plans.
On February 25, 2022, the City and Discovery (together, appellants)
filed a motion for new trial. SMD filed an opposition and objected that the
motion for new trial relied on improper extra-record evidence. In March
2022, the trial court heard oral argument on the motion and took the matter
under submission. On April 4, 2022, the court filed a four-page order denying
the motion for new trial and sustaining SMD’s evidentiary objections.
On June 16, 2022, the trial court filed a judgment granting the petition
for writ of mandate in favor of SMD and against the City and Discovery. The
judgment provided that SMD was the prevailing party entitled to costs of
suit, and the court reserved jurisdiction over claims for costs and attorneys’
fees. In September 2022, the City filed a return to the writ of mandate
informing the court that the City Council had formally repealed and set aside
the certification of the EIR and all approvals for the Project.
3 For example, the court found the City did not abuse its discretion in
waiving certain municipal code requirements; the EIR adequately discussed
land use conflicts; the EIR’s findings regarding fire hazards were sufficient
for a first-tier EIR, although “[f]urther analysis will be necessary during a
subsequent phase of environmental review”; the EIR’s cumulative impacts
discussion was sufficient; the EIR’s consideration of alternatives was
sufficient (although it was “a close question”); and “the City has authority to
achieve project-plan consistency by changing [its general] plan, as long as it
makes all of the needed changes and what remains is internally consistent.”
4
SMD Requests Costs and Files a Motion for Attorneys’ Fees; Appellants Move
to Strike or Tax Costs
In April 2022, after the trial court denied appellants’ motion for a new
trial, SMD filed a memorandum of costs seeking costs of $7,822.19.
Appellants filed a motion to strike or tax costs.
In May 2022, SMD filed a motion for attorneys’ fees and expenses with
a memorandum of points and authorities and two supporting declarations—a
22-page declaration by Winter King, the lead attorney from the law firm that
represented SMD in the administrative and trial court proceedings, and a
five-page declaration by SMD’s Executive Director. SMD sought $825,528.45
in fees based on a lodestar amount of $660,422.76 and a multiplier of 1.25.4
King declared that she had “reviewed all of the time records of [her law f]irm
on this case” and “ ‘written down’ significant time spent on this case by the
[f]irm’s attorneys, planner, and paralegal” and, in addition, SMD had
“reduced its overall fee request by 6.5% to reflect the fact that it did not
prevail on its argument that the City’s approval of the Project was
inconsistent with the City’s zoning and General Plan.”
A hearing on appellants’ motion to strike or tax costs and SMD’s
motion for attorneys’ fees and expenses was set for June 23, 2022. The
hearing was continued to October 2022 on appellants’ ex parte application;
appellants requested a continuance so they could propound discovery “and
incorporate any relevant responses into an opposition to SMD’s fee motion.”
4 “The purpose of a fee enhancement, or so-called multiplier, for
contingent risk is to bring the financial incentives for attorneys enforcing
important . . . rights . . . into line with incentives they have to undertake
claims for which they are paid on a fee-for-services basis.” (Ketchum v. Moses
(2001) 24 Cal.4th 1122, 1132 (Ketchum).)
5
Appellants Bring an Unsuccessful Motion to Compel Responses to Discovery
In litigating SMD’s attorneys’ fees motion, appellants propounded 26
special interrogatories and 14 requests for production of documents and
noticed depositions for five individuals on SMD’s staff and board of directors.
Following an informal discovery conference in July 2022, appellants served
amended discovery requests and withdrew their deposition notices. The
parties then agreed to another continuance, and the hearing on appellants’
motion to strike or tax costs and SMD’s motion for attorneys’ fees and
expenses was continued to December 8, 2022. After another stipulation by
the parties, the hearing was continued to January 26, 2023.
On October 19, 2022, appellants filed a motion to compel further
discovery responses regarding SMD donor information. On November 16,
2022, SMD filed an opposition to the motion to compel, arguing appellants’
demand for confidential donor information intruded on the privacy rights of
SMD and its donors and appellants failed to identify legitimate
countervailing interests outweighing those privacy rights.
On December 1, 2022, the trial court heard oral argument and denied
appellants’ motion to compel further discovery responses. The court noted
SMD provided significant information to appellants including “annual
reports, state and federal tax forms, and audits”; SMD “identified its income
sources, property owned or operated by [SMD], its Executive Director, Land
Conservation Director, or current board members (or their spouses) that is
within three miles of the project site; plus any business interests related to
the project”; and it declared it “has no ‘litigation fund’ for this case or any
other.’ ” The court found “nothing to support the City’s theory” that SMD had
a “disqualifying pecuniary” interest in the litigation.
6
The Trial Court Denies Appellants’ Motion to Strike or Tax Costs and Awards
SMD Attorneys’ Fees
On December 22, 2022, appellants filed an opposition to SMD’s motion
for attorneys’ fees. In January 2023, SMD filed a reply brief, arguing it was
entitled to additional “fees on fees” for preparing and defending its motion for
attorneys’ fees. SMD requested $227,377.50 in fees related to the attorneys’
fees motion, for a total fee request of $1,043,164.41. The hearing on
appellants’ motion to strike or tax costs and SMD’s motion for attorneys’ fees
and expenses was continued again.
The trial court posted a seven-page tentative ruling on the motion for
attorneys’ fees and expenses, tentatively (1) awarding attorneys’ fees for the
CEQA action and for litigation of the fee issue with some reductions to SMD’s
request and (2) denying SMD’s request for additional expenses.
On February 2, 2023, the trial court heard oral argument and denied
appellants’ motion to strike or tax costs. The trial court continued the
hearing on SMD’s motion for attorneys’ fees for further briefing “directed
solely at the ‘fees on fees’ issue.” SMD submitted a supplemental brief and
supplemental declaration.
The trial court posted another tentative ruling, tentatively awarding
SMD attorneys’ fees. On March 2, 2023, the trial court heard oral argument
and granted SMD’s motion for attorneys’ fees in part, adopting its tentative
ruling.
A written order granting the motion for attorneys’ fees in substantial
part and incorporating the trial court’s tentative rulings was filed March 23,
2023. Appellants were “ordered to pay fees in the adjusted lodestar amount
of $382,908 for work on the merits, augmented by a 1.15 multiplier, for a
total of $440,344.20, and $222,660 for services rendered on the fee issue, for a
grand total of $663,004.20.”
7
The City and Discovery timely appealed the order denying their motion
to strike or tax costs and the order awarding SMD attorneys’ fees.
DISCUSSION
Appellants raise multiple challenges to the order awarding SMD
attorneys’ fees. They contend SMD does not meet the criteria for an award of
attorneys’ fees, the amount awarded is unreasonable for various reasons, and
the trial court erred in awarding fees for the time spent litigating the motion
for fees (the “fees on fees” award). Appellants also argue the trial court erred
in awarding costs.
A. Applicable Law and Standard of Review
Code of Civil Procedure section 1021.5 codifies the “private attorney
general” doctrine for awarding attorneys’ fees developed in California
Supreme Court decisions. (Woodland Hills Residents Assn., Inc. v. City
Council (1979) 23 Cal.3d 917, 933 (Woodland Hills Residents Assn).)5 “The
doctrine rests upon the recognition that privately initiated lawsuits are often
essential to the effectuation of the fundamental public policies embodied in
constitutional or statutory provisions, and that, without some mechanism
authorizing the award of attorney fees, private actions to enforce such
5 The statute provides in relevant 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 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.” (Code Civ.
Proc., § 1021.5.)
8
important public policies will as a practical matter frequently be infeasible.”
(Ibid.)
“[E]ligibility for section 1021.5 attorney fees is established when
‘(1) plaintiffs’ action “has resulted in the enforcement of an important right
affecting the public interest,” (2) “a significant benefit, whether pecuniary or
nonpecuniary has been conferred on the general public or a large class of
persons” and (3) “the necessity and financial burden of private enforcement
are such as to make the award appropriate.” ’ ” (Conservatorship of Whitley
(2010) 50 Cal.4th 1206, 1214.)
“Generally, we review an award of attorney fees under section 1021.5
for an abuse of discretion. [Citation.] But the standard of review ‘depends on
the extent to which there were issues of fact below. If the issue is whether
the criteria for an award of attorney fees and costs in this context have been
satisfied, “this may be a mixed question of law and fact and, if factual
questions predominate, may warrant a deferential standard of review.”
[Citation.] If, on the other hand, the underlying facts are largely undisputed
and the issue calls for statutory construction, it is a question of law that is
reviewed de novo.’ ” (McCormick v. Public Employees’ Retirement System
(2023) 90 Cal.App.5th 996, 1004.)
When reviewing “the decision to award attorney fees, and the amount
of fees awarded, for abuse of discretion, [we are] mindful of the fact that the
trial judge is in the best position to assess the value of an attorney’s
performance. [Citation.] Unless an appellant demonstrates otherwise, we
assume the trial court followed the law and acted within its discretion.”
(Sonoma Land Trust v. Thompson (2021) 63 Cal.App.5th 978, 983–984
(Sonoma Land Trust).)
9
Litigation costs (as opposed to attorneys’ fees) are “traditionally
awarded to the prevailing party,” regardless of whether the action enforced
an important right or conferred benefit on a large class of persons.
(DeSaulles v. Community Hospital of Monterey Peninsula (2016) 62 Cal.4th
1140, 1147; see Code Civ. Proc., § 1032, subd. (b) [“Except as otherwise
expressly provided by statute, a prevailing party is entitled as a matter of
right to recover costs in any action or proceeding”].) “If a party recovers
anything other than monetary relief . . ., a trial court shall determine the
prevailing party and use its discretion to determine the amount and
allocation of costs.” (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1333.)
B. The Trial Court’s Determination that SMD Meets the Criteria for an
Award of Attorneys’ Fees
Under Code of Civil Procedure section 1021.5, the trial court may
award attorneys’ fees to “ ‘a successful party.’ ” Our Supreme Court has
“taken a broad, pragmatic view of what constitutes a ‘successful party.’ ”
(Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 565.) In
determining whether a plaintiff is a successful party, “[t]he trial court in its
discretion ‘must realistically assess the litigation and determine, from a
practical perspective, whether or not the action served to vindicate an
important right so as to justify an attorney fee award’ under section 1021.5.
[Citation.] The trial court’s decision on this issue should be reversed only if
there has been a prejudicial abuse of discretion. ‘ “ ‘To be entitled to relief on
appeal . . . it must clearly appear that the injury resulting from such a wrong
is sufficiently grave to amount to a manifest miscarriage of justice. . . .’ ” ’ ”
(Maria P. v. Riles (1987) 43 Cal.3d 1281, 1291.) “ ‘ “[P]laintiffs may be
considered ‘prevailing parties’ for attorney’s fees purposes if they succeed on
any significant issue in litigation which achieves some of the benefit the
parties sought in bringing suit.” ’ ” (Id. at p. 1292, italics added.)
10
Here, the trial court found SMD was a successful party, reasoning:
“[It i]s not necessary for the suit to have stopped the project—which is not the
goal of CEQA in any event—nor is it necessary to achieve dramatic,
fundamental changes in the project. It is sufficient that the potentially
significant impacts will be reanalyzed, which could result in environmentally
beneficial changes to the project. It is not foreordained that the court’s order
will result in only minor corrections to the EIR. The City must proceed in
good faith, and when the new information is provided, it could result in
further changes in the project. Given the size and scope of the project, even
seemingly minor changes in the environmental analysis could result in
relatively significant changes in the project. [¶] Accordingly, while it is
beyond dispute that the Court rejected most of the claimed inadequacies in
the Environmental Impact Report, SMD is nonetheless the prevailing or
successful party.”
The trial court also expressly found SMD met the other requirements
for attorneys’ fees under Code of Civil Procedure section 1021.5. It
determined SMD enforced an important right affecting the public interest,
explaining, first, “ ‘the public always has a significant interest in seeing that
legal strictures are properly enforced and thus, in a real sense, the public
always derives a ‘benefit’ when illegal private or public conduct [such as a
violation of CEQA] is rectified,’ ” quoting Woodland Hills Residents Assn.,
supra, 23 Cal.3d at page 939, and, second, “CEQA compliance is ‘important.’ ”
The court found SMD’s action conferred a significant benefit on the
public or a large class of persons, reasoning, “Generally, ‘requiring a
governmental agency to analyze or reassess environmental impacts
associated with a proposed project’ is deemed to confer a significant benefit,”
11
quoting Keep Our Mountains Quiet v. County of Santa Clara (2015) 236
Cal.App.4th 714, 737 (Keep Our Mountains Quiet).6
And the court found the necessity and financial burden of private
enforcement made an award appropriate. It explained: “Generally, a party
meets this test when it shows that ‘the cost of the claimant’s legal victory
transcend his [or her] personal interest, that is, when the necessity for
pursing the lawsuit placed a burden on the [claimant] out of proportion to his
[or] her individual stake in the matter.’ (Woodland Hills Residents Assn.,
supra, 23 Cal.3d at [p.] 941.) SMD has made this showing. While much
discovery was taken on this issue, Respondents do not raise it in their
opposition brief.”
1. Changes to the Housing Accountability Act Made After the Trial
Court Awarded Attorneys’ Fee in This Case
Appellants’ first claim is that SMD is “foreclose[d]” from eligibility for
attorneys’ fees under Code of Civil Procedure section 1021.5 based on
amendments to the Housing Accountability Act (Gov. Code, § 65589.5; HAA)
that took effect after the trial court awarded attorneys’ fees in this case. In
other words, appellants claim that the award of attorneys’ fees must be
reversed because SMD is currently ineligible for an award of attorneys’ fees
as a matter of law. We disagree.
a. The HAA and Recent Amendments
The HAA “was enacted in 1982 and has been frequently amended to
require local governments to approve more housing. [Citation.] The HAA
itself makes clear, however, that the obligation to expand housing coexists
6 Keep Our Mountains Quiet, supra, 236 Cal.App.4th at page 737, cites
many CEQA cases in which a plaintiff’s success in “requiring a governmental
agency to analyze or reassess environmental impacts associated with a
proposed project” was found to “confer a significant benefit.”
12
with the ongoing responsibility of local governments to conduct appropriate
environmental review under CEQA.” (Coalition of Pacificans for an Updated
Plan v. City Council of Pacifica (2025) 117 Cal.App.5th 647, 659–660
(Coalition of Pacificans).) In particular, Government Code7 section 65589.5,
subdivision (e), provides that nothing in the HAA shall “be construed to
relieve the local agency from . . . complying with the California
Environmental Quality Act.”
“The HAA provision at issue in this appeal—section 65589.5,
subdivision (p)(1)—was added to the statute as part of Assembly Bill No.
1633 (2023-2024 Reg. Sess.) (Assembly Bill 1633), which took effect on
January 1, 2024. (Stats. 2023, ch. 768, § 2; Assem. Bill No. 1633 (2023-2024
Reg. Sess.).)” (Coalition of Pacificans, supra, 117 Cal.App.5th at p. 660.) The
new provision “in some circumstances modifies the inquiry a court must
conduct in determining whether to award attorney fees under Code of Civil
Procedure section 1021.5.” (Id. at p. 659.)8
Section 65589.5, subdivision (p)(1) (section 65589.5(p)(1)), currently9
provides: “Upon any motion for an award of attorney’s fees pursuant to
7 Further undesignated statutory references are to the Government
Code.
8 Coalition of Pacificans was decided after the opening and respondent’s
briefs were filed in this appeal but before appellants filed their reply, and
appellants cited the decision extensively in their reply. SMD moved for leave
to file a supplemental brief to address the new authority, and we granted the
motion, permitting the parties to file supplemental briefing addressing
Coalition of Pacificans and “the retroactive application of Government Code
section 65589.5(p).”
9 In Coalition of Pacificans, the court noted that section 65589.5 has
been amended several times since the enactment of Assembly Bill 1633, but
“[t]hese amendments did not make substantive revisions to subdivision (p) of
13
Section 1021.5 of the Code of Civil Procedure, in a case challenging a local
agency’s approval of a housing development project, a court, in weighing
whether a significant benefit has been conferred on the general public or a
large class of persons and whether the necessity of private enforcement
makes the award appropriate, shall give due weight to the degree to which
the local agency’s approval furthers policies of this section, including, but not
limited to, subdivisions (a), (b), and (c),[10] the suitability of the site for a
housing development, and the reasonableness of the decision of the local
agency. It is the intent of the Legislature that attorney’s fees and costs shall
rarely, if ever, be awarded if a local agency, acting in good faith, approved a
the statute.” (117 Cal.App.5th at p. 660, fn. 6.) We quote the version of the
statute that took effect January 1, 2026.
10 “[S]ubdivisions (a), (b), and (c) of section 65589.5 set forth legislative
findings and policies as to the housing shortage and the need for approval of
more housing, particularly in urban areas.” (Coalition of Pacificans, supra,
117 Cal.App.5th at p. 660, fn. 7.) Subdivision (a) of section 65589.5 includes
legislative findings that “[t]he lack of housing, including emergency shelters,
is a critical problem that threatens the economic, environmental, and social
quality of life in California” (id., subd. (a)(1)(A)) and that “the consequences”
of the “activities and policies of many local governments that limit the
approval of housing . . .” include “discrimination against low-income and
minority households, lack of housing to support employment growth,
imbalance in jobs and housing, reduced mobility, urban sprawl, excessive
commuting, and air quality deterioration” (id., subd. (a)(1)(B), (C)).
Subdivision (b) expresses the state policy “that a local government not reject
or make infeasible housing development projects, including emergency
shelters, that contribute to meeting the need determined pursuant to this
article without a thorough analysis of the economic, social, and
environmental effects of the action . . . .” (Id., subd. (b).) And, in subdivision
(c), the Legislature states the policy “that development should be guided
away from prime agricultural lands; therefore, in implementing this section,
local jurisdictions should encourage, to the maximum extent practicable, in
filling existing urban areas.” (Id., subd. (c).)
14
housing development project that satisfies conditions established in
paragraph (1), (2), or (3) of subdivision (a) of Section 65589.5.1 or paragraph
(1), (2), or (3) of subdivision (a) of Section 65589.5.2.”11
b. Analysis
Appellants primarily rely on the second sentence of section
65589.5(p)(1), which specifies “that attorney’s fees and costs shall rarely, if
11 Paragraphs (1), (2), and (3) of section 65589.5.2, subdivision (a), in
turn, provide: “(1) There is substantial evidence in the record before the local
agency that the site of the housing development project is not located on
either of the following: [¶] (A) On a site specified in subparagraphs (A) to (C),
inclusive, or subparagraphs (E) to (K), inclusive, of paragraph (6) of
subdivision (a) of Section 65913.4. [¶] (B) Within a very high fire hazard
severity zone, as determined by the Department of Forestry and Fire
Protection pursuant to Section 51178, or within a high or very high fire
hazard severity zone as indicated on maps adopted by the Department of
Forestry and Fire Protection pursuant to Section 4202 of the Public
Resources Code.
“(2) The housing development project is located on a legal parcel or
parcels within an urbanized area and meets one or more of the following
criteria: [¶] (A) The housing development project is located within one-half
mile walking distance to either a high-quality transit corridor or a major
transit stop. [¶] (B) The housing development project is located in a very low
vehicle travel area. [¶] (C) The housing development project is proximal to
six or more amenities pursuant to paragraph (4) of subdivision (b) as of the
date of submission of the application for the project. [¶] (D) Parcels that are
developed with urban uses adjoin at least 75 percent of the perimeter of the
project site or at least three sides of a four-sided project site. For purposes of
this paragraph, parcels that are only separated by a street or highway shall
be considered to be adjoined.
“(3) The density of the housing development project meets or exceeds 15
dwelling units per acre.”
The parties agree that paragraphs (1), (2), and (3) of section 65589.5.1,
subdivision (a), describe criteria virtually identical to those of paragraphs (1),
(2), and (3) of section 65589.5.2, subdivision (a).
15
ever, be awarded if a local agency, acting in good faith, approved a housing
development project that satisfies [certain enumerated] conditions.”
Appellants argue, “[F]or the purposes of [the opening appellate] brief, we
show that the Project meets the conditions of Paragraphs (1) and (2) of
subdivision (a) of section 65589.5.2.”
As we have described, the trial court granted SMD’s motion for
attorneys’ fee in substantial part in March 2023, but section 65589.5(p)(1) did
not take effect until 2024. So the parties did not litigate whether the Project
“satisfies conditions established in paragraph (1), (2), or (3) of subdivision (a)
of Section 65589.5.1 or paragraph (1), (2), or (3) of subdivision (a) of Section
65589.5.2.” (§ 65589.5(p)(1).)12 Thus, appellants cannot (and do not) claim
the trial court abused its discretion in applying section 65589.5(p)(1) to the
determination of whether to award SMD attorneys’ fees because that
provision did not exist when the trial court made its decision. Instead,
appellants take the position that section 65589.5(p)(1) now applies to SMD’s
motion for attorneys’ fees and this provision “forecloses [SMD]’s eligibility for
attorneys’ fees.” (Bolding and capitalization omitted, italics added.)
Appellants’ claim fails because they have not established that section
65589.5(p)(1) bars an award of attorneys’ fees in this case as a matter of
12 Indeed, sections 65589.5.1 and 65589.5.2 did not take effect until
January 1, 2025. (Stats. 2024, ch. 265, §§ 2, 3; Assem. Bill No. 1413 (2023-
2024 Reg. Sess.). Assembly Bill 1633 added similar provisions to section
65589.5, and these provisions “were later deleted and reenacted in similar
form in §§ 65589.5.1 and 65589.5.2.” (Coalition of Pacificans, supra, 117
Cal.App.5th at p. 666; see § 65589.5, subd. (a)(4) [“It is the intent of the
Legislature that the amendments removing provisions from subparagraphs
(D) and (E) of paragraph (6) of subdivision (h) and adding those provisions to
Sections 65589.5.1 and 65589.5.2 by Assembly Bill 1413 (2023), insofar as
they are substantially the same as existing law, shall be considered
restatements and continuations of existing law, and not new enactments”].)
16
law.13 The sentence of the new provision that appellants rely on does not
eliminate the possibility of an award of fees when the identified conditions
are present; it specifies that “attorney’s fees and costs shall rarely, if ever, be
awarded” when the local agency acts in good faith and the conditions are met.
Accordingly, even if appellants could point to evidence in the record
supporting findings that the City acted in good faith and that the Project
satisfies the conditions described in the second sentence of section
65589.5(p)(1), this would not be enough to establish that the SMD is
precluded from obtaining an award of attorneys’ fees as a matter of law.
Here, we note that, in their opening and reply briefs, appellants never
suggest in the alternative that the matter should be remanded to afford the
parties an opportunity to present evidence and argument on whether
attorneys’ fees should be awarded under the new considerations of section
65589.5(p)(1)—a provision that did not exist when the motion for attorneys’
fees was litigated and decided by the trial court—and to afford the trial court
an opportunity to consider the matter under this new provision in the first
instance. Appellants claim only that the attorneys’ fees award must be
reversed because section 65589.5(p)(1) forecloses an award of fees in this case
as a matter of law. “ ‘Issues do not have a life of their own: if they are not
raised . . . we consider [them] waived.’ ” (A.H. v. Tamalpais Union High
13 We assume section 65589.5(p)(1) applies to SMD’s attorneys’ fees
award because the new provision relates to attorneys’ fees, and “statutory
provisions that alter the recovery of attorney fees are deemed procedural in
nature and apply to pending litigation.” (USS-Posco Industries v. Case (2016)
244 Cal.App.4th 197, 201; and see Woodland Hills Residents Assn., supra, 23
Cal.3d at p. 928 [holding new provisions of Code of Civil Procedure section
1021.5 “authorizing awards of attorney fees under a private attorney general
theory” applies “to all other cases pending on appeal on the effective date of
the statute” (bolding omitted)].)
17
School Dist. (2024) 105 Cal.App.5th 340, 354.) “An appellate court is not
required . . . to make arguments for parties.” (Paterno v. State of California
(1999) 74 Cal.App.4th 68, 106.)14
2. Remaining Challenges to the Trial Court’s Determination that
SMD is Entitled to an Award of Attorneys’ Fees
Appellants next assert that, even putting aside the post-award
amendments to HAA, SMD is not eligible for an award of attorneys’ fees.
They argue SMD was not successful for purposes of Code of Civil Procedure
section 1021.5 because SMD “only obtain[ed] a writ requiring minor
corrections [and] a procedural ‘do-over.’ ” (Bolding and capitalization
omitted.) This may have been a colorable argument to raise with the trial
court, but it is insufficient on appeal to show the trial court abused its
discretion in reaching a different conclusion. (See Estate of Gilkison (1998)
65 Cal.App.4th 1443, 1449 [“A ‘. . . showing on appeal is wholly insufficient if
it presents a state of facts, a consideration of which, for the purpose of
judicial action, merely affords an opportunity for a difference of opinion. An
appellate tribunal is neither authorized nor warranted in substituting its
judgment for the judgment of the trial judge’ ”].) Here, the trial court
considered and expressly rejected appellants’ claim that the relief SMD
obtained was “merely a procedural ‘do-over.’ ”
14 Appellants mention the possibility of remand for the first and only
time in a parenthetical phrase in their supplemental briefing. But
supplemental briefing is not an appropriate vehicle to raise a new issue that
could have been raised in the opening brief. (See C&C Construction, Inc. v.
Sacramento Municipal Utility Dist. (2004) 122 Cal.App.4th 284, 303
[argument raised for the first time in supplemental briefing on appeal that
could have been raised in the original appellate briefing was forfeited]; Shaw
v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1345, fn. 6 [declining to
consider argument raised for the first time in supplemental appellate briefs].)
18
Appellants cite Concerned Citizens of La Habra v. City of La Habra
(2005) 131 Cal.App.4th 329 (Concerned Citizens of La Habra), as
“instructive,” but the case does not support a finding of abuse of discretion in
the present matter. There, the trial court denied the plaintiff’s request for
attorneys’ fees because, although the plaintiff succeeded in showing a
mitigated negative declaration certified by the defendant city “needed
revision,” the trial court “felt the inadequacy [of the mitigated negative
declaration] was a ‘minute blemish’ that could be repaired” without requiring
the defendant city to prepare an EIR. (Id. at pp. 331, 335.) The Court of
Appeal affirmed the denial of fees because it could not conclude the trial
court’s determination was an abuse of discretion, noting that the
determination whether to award attorneys’ fees “is ‘ “best decided by the trial
court, and the trial court’s judgment on this issue must not be disturbed on
appeal “unless the appellate court is convinced that it is clearly wrong and
constitutes an abuse of discretion.” ’ ” (Id. at pp. 334, 336, italics added.)
That an appellate court found a trial court acted within its discretion in
denying a CEQA plaintiff attorneys’ fees under different circumstances does
not demonstrate the trial court in this case was “ ‘ “clearly wrong” ’ ” (id. at p.
334) to award SMD attorneys’ fees.15
SMD succeeded in showing the EIR was inadequate in four respects.
As a result of its efforts, the court ordered the City to set aside certification of
the inadequate EIR and the Project approvals and required the City to
15 At the February 2, 2023, hearing on attorneys’ fees, the trial court
rejected appellants’ argument that this case involved a “ ‘minute blemish’ ”
analogous to that in Concerned Citizens of La Habra, supra, 131 Cal.App.4th
at page 333, when it observed, “I don’t think this quite qualifies in the minor
blemish category.” The trial court did not abuse its discretion in
distinguishing Concerned Citizens of La Habra from the current matter.
19
prepare a new EIR including further information on the proposed 150 ADUs,
baseline biological resources, water supply impacts, and air pollution impacts
and mitigation measures. Under these circumstances, the trial court acted
within its discretion in finding SMD was a successful party. (See, e.g., La
Mirada Avenue Neighborhood Assn. of Hollywood v. City of Los Angeles
(2018) 22 Cal.App.5th 1149, 1156–1157 [rejecting project proponent’s
argument that plaintiffs were not successful because the project could still be
approved under new zoning laws; plaintiffs achieved their objective of
“ ‘ensuring that the City’s decisions are in conformity with the requirements
of the [municipal code]’ ”]; RiverWatch v. County of San Diego Dept. of
Environmental Health (2009) 175 Cal.App.4th 768, 773–774, 783
(RiverWatch) [affirming the trial court’s finding that plaintiffs were
successful parties where many of their claims were rejected but the EIR
certification and project approval were set aside and the court required
correction of deficiencies in the EIR].)
Appellants also claim SMD did not enforce an important right, again
citing Concerned Citizens of La Habra, supra, 131 Cal.App.4th 329. But they
fail to show (or even argue) the trial court abused its discretion in disagreeing
with their position. “[E]nvironmental protection and compliance with
regulatory provisions are ‘important rights of the general public.’ ”
(RiverWatch, supra, 175 Cal.App.4th at p. 782.) SMD’s action enforced
compliance with CEQA by requiring the City to prepare a new EIR with
additional information. The trial court acted within its discretion in finding
SMD enforced an important right. (See, e.g., San Bernardino Valley
Audubon Society, Inc. v. County of San Bernardino (1984) 155 Cal.App.3d
738, 754 [rejecting claim that CEQA plaintiff did not enforce an important
public right and observing, “litigation brought to enforce the provisions of
20
CEQA and compliance with planning and zoning laws has been held to
involve important rights affecting the public interest”].)
Appellants’ claim that SMD did not confer a significant benefit likewise
fails because they fail to show abuse of discretion. (See In re Marriage of
Boswell (2014) 225 Cal.App.4th 1172, 1176 [“The appellate court may not
substitute its discretion for that of the trial court unless the appellant can
demonstrate, as a matter of law, that the trial court’s judgment is arbitrary,
capricious, whimsical, or exceeds the bounds of reason”]; Sonoma Land Trust,
supra, 63 Cal.App.5th at pp. 983–984 [“Unless an appellant demonstrates
otherwise, we assume the trial court followed the law and acted within its
discretion”]; and see Keep Our Mountains Quiet, supra, 236 Cal.App.4th at p.
737 [citing cases in which “requiring a governmental agency to analyze or
reassess environmental impacts associated with a proposed project” was
found to “confer a significant benefit”].)
In short, appellants have failed to show the trial court abused its
discretion in determining that SMD was entitled to an award of attorneys’
fees under section Code of Civil Procedure section 1021.5.16
C. Amount of the Attorneys’ Fees Award
SMD asked for $1,043,161.41 in fees, based on a lodestar amount for
the CEQA action of $660,422.76 (which included a claim for fees for urban
16 In the section of their opening appellate brief devoted to the claim
that SMD does not satisfy the criteria for a fee award under Code of Civil
Procedure section 1021.5, appellants also argue that, to the extent SMD was
successful, the trial court nonetheless should have reduced the fee award
substantially. This argument is not a challenge to the trial court’s
determination that SMD was entitled to an award of attorneys’ fees in the
first place. We consider this argument in addressing appellants’ claim that
the amount of fees the trial court awarded was unreasonable.
21
planners of over $65,000), a multiplier of 1.25 on the lodestar amount, plus
additional fees of $227,377.50 for litigating the attorneys’ fees motion.
The trial court rejected SMD’s claim for fees for the urban planners;
disallowed SMD’s claim of $35,273 for administrative advocacy work related
to the determination that the Project required an EIR rather than a negative
declaration; reduced the amount SMD claimed for time spent on the opening
brief, reply brief, and preparing for oral argument by 10 percent ($41,532);
reduced the resulting fee amount by 25 percent to account for SMD’s “limited
success” and reduced the multiplier to 1.15.
This resulted in an attorneys’ fee award for litigating the CEQA action
of $440,344.20 (based on a lodestar amount of $382,908 multiplied by 1.15.)
The trial court awarded SMD an additional $222,660 for services rendered on
the fee issue, for a total award of $663,004.20.
Appellants claim the amount of fees the trial court awarded is
unreasonable. They fail to show the court abused its discretion, however.
First, appellants claim SMD’s time records were not properly
authenticated. The trial court rejected this argument, finding that attorney
King’s declaration “sufficiently authenticated the daily summaries as based
on contemporaneous time logs kept in the ordinary course of business.” In
her declaration, King stated she oversaw her law firm’s work regarding the
Project, “supervised the work of other [f]irm attorneys working on the
matter,” and “reviewed all of the time records of the [f]irm on this case,” and
she attached “daily summaries of the time spent on this case by members of
the [f]irm.” We see no abuse of discretion in the trial court accepting King’s
declaration as sufficient evidence of the attorney work performed in this case.
(See Horsford v. Board of Trustees of California State University (2005) 132
Cal.App.4th 359, 396 [“the verified time statements of . . . attorneys, as
22
officers of the court, are entitled to credence in the absence of a clear
indication the records are erroneous”]; Evid. Code, § 1271 [exception to the
hearsay rule for writings “made in the regular course of a business” “at or
near the time of the act, condition, or event,” which are authenticated by a
“qualified witness” and where “[t]he sources of information and method and
time of preparation were such as to indicate its trustworthiness”]; and see,
e.g., Citizens Against Rent Control v. City of Berkeley (1986) 181 Cal.App.3d
213, 222, 236 [affirming award of attorneys’ fees where one attorney’s
declaration “detail[ed] the efforts of [other] attorneys and other personnel on
the case”].)
Second, appellants argue SMD failed to substantiate that the attorney
time claimed was reasonable or necessary to the litigation. However,
appellants’ “ ‘[g]eneral arguments that fees claimed are excessive,
duplicative, or unrelated do not suffice.’ ” (Sonoma Land Trust, supra, 63
Cal.App.5th at p. 985.) Here, the trial court considered whether all the time
SMD claimed was reasonably necessary and (1) deducted all time spent on
the administrative proceeding related to the determination that the Project
required an EIR rather than a negative declaration and (2) reduced the time
spent on briefing and oral argument by 10 percent. “It is not our role . . . to
second-guess the trial court on such matters as whether the [attorneys’]
hours expended [we]re justified. . . . The trial court was fully cognizant of the
quality of the services performed, the amount of time devoted to the case and
the efforts of counsel.” (Building a Better Redondo, Inc. v. City of Redondo
Beach (2012) 203 Cal.App.4th 852, 874 (Building a Better Redondo).)
Keeping in mind “that the trial judge is in the best position to assess the
value of an attorney’s performance,” we conclude the trial court did not abuse
its discretion in determining the reasonableness and necessity of SMD’s
23
attorneys’ work in this matter. (Sonoma Land Trust, at pp. 983–984; and see
Akins v. Enterprise Rent-A-Car Co. of San Francisco (2000) 79 Cal.App.4th
1127, 1134 (Akins) [affirming the amount of an attorneys’ fees award
because, where the trial court “significantly reduced . . . the original request,”
“it clearly appear[ed] that the trial court exercised its discretion”].)
Third, appellants claim the trial court abused its discretion in failing to
reduce the lodestar amount. But, after making the deductions described
above, the trial court did further reduce the lodestar amount by 25 percent to
take into account the fact that SMD raised many issues of alleged CEQA
violations that were not successful. Appellants have not shown this was an
abuse of discretion. Again, it is not our job to second-guess the trial court’s
determination regarding whether attorney hours expended are justified;
“ ‘[t]he “experienced trial judge is the best judge of the value of professional
services rendered in his [or her] court.” ’ ” (Building a Better Redondo, supra,
203 Cal.App.4th at pp. 873–874.)
Fourth, appellants assert SMD was not entitled to a fee multiplier. In
this case, attorney King declared that her law firm charged SMD rates “far
below the market rates” for many years in this matter and that, after the
trial court issued its statement of decision in February 2022, the firm agreed
to do any remaining work (including opposing appellants’ motion for a new
trial and moving for attorneys’ fees) pro bono. Recognizing that only part of
the attorney work was done on a contingency basis (that is, the post-February
2022 pro bono work), the trial court set “a modest multiplier of 1.15” “[b]ased
primarily on the partially contingent risk.” “[T]he propriety of a multiplier
based on contingent risk, and, if [appropriate], the amount of the multiplier
are open questions entrusted to the court’s sound discretion.” (Center for
Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603,
24
623.) Appellants fail to show the trial court abused its discretion in using a
1.15 multiplier in calculating the fee award. (See, e.g., Sonoma Land Trust,
supra, 63 Cal.App.5th at pp. 986–987 [affirming multiplier of 1.4 where the
plaintiff’s “attorneys bore the risk that, if they lost, they would not be paid
the fair market value of most of their work and, if they won, payment could
be delayed for several years, as was the case here”]; Building a Better
Redondo, supra, 203 Cal.App.4th 852, 874–875 [affirming an award of
attorneys’ fees with a “modest multiplier” where “only a portion of the fee was
contingent”].)17
D. Award of Fees for Litigating the Motion for Fees
Appellants separately challenge the portion of the attorneys’ fees award
for “fees on fees.” They assert the trial court erred in awarding fees on fees
and erred in not reducing the award for fees on fees. However, attorneys’
“fees recoverable under section 1021.5 ordinarily include compensation for all
hours reasonably spent, including those necessary to establish and defend the
fee claim” (Serrano v. Unruh (1982) 32 Cal.3d 621, 639), and appellants have
17 Appellants fault the trial court for not “investigat[ing] whether there
was any risk of harm to SMD or any need for the reduced fee arrangement.”
But appellants do not cite any authority establishing that a trial court is
required to conduct such an investigation. Appellants cite only Ketchum,
supra, 24 Cal.4th at page 1138, in which our high court observed that, in
deciding whether to include a multiplier, “the trial court should consider
whether, and to what extent, the attorney and client have been able to
mitigate the risk of nonpayment, e.g., because the client has agreed to pay
some portion of the lodestar amount regardless of outcome.” (Ibid.) The trial
court in this case did consider that SMD agreed to pay a reduced fee for a
portion of the attorneys’ work. “The fact that a case is partially contingent
does not eliminate contingent risk as a factor.” (Sonoma Land Trust, supra,
63 Cal.App.5th at p. 987.)
25
not shown the trial court abused its discretion in awarding fees on fees in this
case.
Here, the trial court indicated in its first tentative ruling on the
attorneys’ fees motion that it would grant SMD’s request for fees on fees,
observing: “[T]he matter [of fees] was vigorously litigated, with substantial
discovery, after the opening brief [in support of SMD’s motion for fees] was
filed. As a result, the reply brief includes a substantial additional request for
fees . . . . This is a substantial amount, but there was substantial discovery
undertaken in response to [Appellants]’ requests, and [Appellants]’ opposition
brief raised numerous issues.”18
At the February 2, 2023, hearing on SMD’s motion for attorneys’ fees
and appellants’ motion to strike or tax costs, Discovery’s attorney argued
appellants had no “opportunity to brief the merits of those fees [on fees],
whether they’re reasonable.” So the trial court continued the hearing and
permitted further briefing from all parties on the issue of “fees on fees.”
In supplemental briefing, appellants argued the attorneys’ fees claimed
for preparing SMD’s (1) discovery responses and opposition to appellants’
motion to compel, (2) opposition to appellants’ motion to strike or tax costs,
and (3) reply in support of its fee motion were all unreasonable.
The trial court rejected these arguments. The court explained: “A
significant portion of the fees requested are attributed to the discovery, and
discovery dispute, which arose concerning the financial interests of SMD.
[Appellants] do not dispute that time was necessarily spent on these
discovery issues, but they claim that the hours are not reasonable, and block
billing prevents determination of whether the time was appropriately spent.
18 Recall that the trial court’s two tentative rulings were incorporated
in the order granting the motion for attorneys’ fees.
26
Finally, they argue that the number of attorneys involved led to duplication
of effort. As to the briefing, [appellants] calculate that SMD spent 7 hours
per page on the opposition to the motion to compel further discovery
responses, 6.6 hours per page on the opposition to the motion to strike or tax
costs, and [7] hours per page on their reply brief on the motion for fees.
“SMD responds that the bulk of the expense was devoted to the
discovery issues, which were initiated and aggressively pursued by
[appellants]. [¶] The time spent on the discovery issues was necessarily
incurred by SMD, and is largely the reason why the ‘fees on fees’ are much
larger in this case than in other cases. Moreover, [appellants]’ efforts in this
area were not successful: the ‘pecuniary interest’ issue was not raised in
[appellants]’ briefs and did not result in the denial or reduction of SMD’s fee
motion.
“The issues raised by [appellants] in their fee opposition were both
detailed and wide-ranging, requiring a reply that was of equal depth and
breadth. The ‘hours per page’ computation does not fully account for
necessary research that may not result in added length. The relatively large
‘blocks’ of time in the billing records (a few hours), are not problematic here,
because the nature of the tasks is adequately described. The time spent on
briefing is relevant, and the Court previously made adjustments to account
for it, applying a 10% reduction to the requested fee for the litigation on the
merits. As to the ‘fees on fees,’ however, no further adjustment is necessary.
“As to the time spent on briefing of the motion to tax costs, it is
relatively common for parties to spend significant attorney time briefing the
validity of claims for small amounts of money, requiring research and
drafting that greatly exceeds the amount of money at issue.”
27
On appeal, appellants reargue their position that the amount of time
SMD claimed for litigating the attorneys’ fees motion was unreasonable and
unjustified, an argument the trial court rejected. Again, “[t]he ‘ “experienced
trial judge is the best judge of the value of professional services rendered in
his [or her] 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.” ’ ” (Ketchum, supra, 24 Cal.4th at p. 1132.) The trial court in this
case found the amount SMD claimed for fees on fees was reasonable and
explained its reasons for its determination in detailed rulings. Appellants’
assertions to the contrary do not convince us that the trial court’s
determination was clearly wrong.
E. Costs
Appellants also contend the trial court erred in awarding SMD costs.
They argue SMD is not a prevailing party for purposes of a costs award under
section 1032 “[f]or all the reasons previously discussed” in their argument
that SMD is not a successful party for purposes of an award of attorneys’ fees.
This argument fails for the reasons we have explained in affirming the fees
award. The trial court acted within its discretion in designating SMD the
prevailing party. (See, e.g., Preserve Wild Santee v. City of Santee (2012) 210
Cal.App.4th 260, 291–292 (Preserve Wild Santee) [affirming award of costs
and attorneys’ fees to plaintiffs who succeeded in showing a project EIR
violated CEQA].)
F. Attorneys’ Fees on Appeal
Finally, SMD requests attorneys’ fees for its work in defending the fee
award on appeal. We agree SMD is entitled to an award of attorneys’ fees
for successfully defending this appeal, and we remand the matter to the trial
court to determine the award amount. (See Preserve Wild Santee, supra, 210
28
Cal.App.4th at p. 292 [“plaintiffs are also entitled to an award of costs and
attorney fees for their successful appeal efforts”]; Akins, supra, 79
Cal.App.4th at p. 1134 [granting request for attorneys’ fees on appeal and
remanding to the trial court to determine the amount of such fees].)
DISPOSITION
The judgment is affirmed. Respondent SMD is entitled to its costs on
appeal. The matter is remanded to the trial court to determine the amount of
appellate attorney fees to be awarded to SMD.
_________________________
Miller, J.
WE CONCUR:
_________________________
Richman, Acting P. J.
_________________________
Desautels, J.
A167589, Save Mount Diablo v. City of Pittsburg, et al.
29