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ORDER
001 C05052542
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FILED
AUG 2 5 2015
BY~LE~~treD~~~C~:;:-
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Plaintiff,
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vs.
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Defendants.
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I hear argument on the captioned motion August 25, 2015. I have previously determined
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that Cal-Am and Monterey are prevailing parties under C.C.P. 1032 and C.C. 1717. July 21,
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2015 Order, 1-3. They now move for attorneys' fees. Cal-Am filed two separate fee motions.
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One is brought under both C.C. 1717 and C.C.P. 1021.5. The other is brought pursuant to
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C.C.P. 2033.420. Monterey filed a single fee motion, under C.C. 1717 and C.C.P.
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1021.5.1
Requests for Judicial Notice
Cal-Am's requests for judicial notice of various documents filed in this action are
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granted.
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After the close of briefing on these motions, Marina appealed the ruling that Cal-Am and Monterey are prevailing
parties under C. C. 1717. I may nevertheless treat the present motions, and no party has suggested otherwise,
because my determinations do not affect the practical ability of the Court of Appeal to resolve the 1717 issue in
anyway.
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Evidentiary Objections
Cal-Am objected to portions of three declarations filed by Marina. Only one is arguably
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material, that of Mark Fogelman. He has some basis to make the conclusions he does on the
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reasonableness of rates, and on the discounts given to public agencies and public utilities. The
Analysis
A.
1.
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Entitlement to Fees
a.
C.C. 1717
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Marina does not dispute Cal-Am's entitlement to fees under C.C. 1717 for present
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purposes.
b.
C.C.P. 1021.5
Cal-Am argued entitlement to fees under C.C.P. 1021.5. Cal-Am's Reply notes
Marina's "concession" that Cal-Am is the prevailing party under C.C. 1717, but does not
address C.C.P. 1021.5.
Entitlement to fees under 1021.5 requires a showing that the litigation (1) served to
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vindicate an important public right; (2) conferred a significant benefit on the general public or a
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large class of persons; and (3) was necessary and imposed a financial burden on plaintiffs that
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was out of proportion to their individual stake in the matter. Center for Biological Diversity v.
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Cal-Am does not address the necessity and financial burden of enforcement relative to
C3J.-Am's financial stake in the matter. Opposition, 8. Cal-Am incorporates Monterey's
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argument by reference. /d. But Monterey's argument, even ifsuffici,ent (and it's not), does not
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address Cal-Am's financial stake in this litigation. Monterey Motion, 8-9. Cal-Am has failed to
demonstrate its entitlement to fees under 1021.5. Save Open Space Santa Monica Mountains v.
Superior Court, 84 Cal.App.4th 235, 247 (2000) (party seeking a C.C.P. 1021.5 award bears
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the burden of establishing that its litigation costs transcend its personal interests, a court is
required to compare the litigant's private interests with the anticipated costs of suit)?
c.
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C.C.P. 2033.420
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expenses incurred in making that proof," that is, the proof of the specific RFA at issue. C.C.P.
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2033.420. See generally, Wei! & Brown, et al., CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE
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BEFORE TRIAL 'U'U 8:1405.1 et seq.; 8:1413.1a(2015); Garcia v. Hyster Co., 28 Cal. App. 4th
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724, 736-37 (1994). Cal-Am has not established a link between a given RF A and specific hours
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2.
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Reasonableness of Fees
Cal-Am's attorneys provided a 20% discount from their regular hourly rates. With the
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discollJ!ts, the attorneys' and paralegals' actual rates ranged from $552 (2014)-$580 (2015) to
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$276. The blended rate for attorneys was $353.40 per hour.
Marina's citation to Syers Properties Ill Inc. v. Rankin, 226 Cal.App.4th 691,701-02
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(2014) and its discussion of the Laffiy Matrix is not useful here because no party provided the
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"Locality Pay Tables" that can be used to adjust the rates in the Laffey Matrix for the San
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Cal-Am had a private interest in the validity ofthe Water Purchase Agreement, in particular, because it sought to
avoid potential liability under that contract.
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I find the rates for this complex case are reasonable, and indeed below market.
b.
Hours Worked
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Marina identified three categories of services that it contends should be removed.
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i.
Marina argues that time spent related to settlement efforts between Cal-Am and Monterey
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related to this litigation and other litigation, including seeking settlement approval before the
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Coop. ofBerkeley, Inc., 170 Cal.App.3d 836,847 (1985) (when computing time expended the
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court should ordinarily exclude peripheral activities unless they may be shown to have
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contributed to the result reached. Cal-Am explains only that monitoring the CPUC proceedings
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was necessary because Marina made inconsistent representations before this Court and CPUC
and argued that CPUC had jurisdiction. Cal-Am also argues that Marina arbitrarily subdivided
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Cal-Am's bill where single entries included challenged and unchallenged activity and that the
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improper inclusion of these hours is immaterial because Cal-Am could have billed higher rates,
which would offset any deduction.
Cal-Am's argument that Marina arbitrarily subdivided Cal-Am's billing entries where
single entries included challenged and unchallenged activities is unpersuasive. Cal-Am was in
the best position to apportion the time where the billing records are insufficient to do so, but
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failed to identify any specific error in Marina's attempts to do so. And of course, Cal-Am did
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not seek fees at a higher rate, but the rates Cal-Am actually paid.
With respect to the relationship between the settlement and CPUC activity addressed in
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these t4ne entries, the briefs contain only cursory statements as to whether that activity
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contributed to the result reached. The time records do nothing to help. At argument Cal-Am
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counsel agreed that the time generally was not done to generate the success in this case. This
time should not be included in the fee award. This results in a deduction of$74,600 before the
ii.
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Marina argues that time spent unsuccessfully seeking to depose Marina's counsel did not
contribute to the results reached and therefore the amounts billed for that work are not
recoverable.
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Not all hours must necessarily contribute to the result reached. "When computing the
time expended, the court should ordinarily consider only time reasonably spent on the merits of
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the action, and should not include peripheral activities unless they may be shown to have
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contributed to the result reached." Wallace, 170 Cal.App.3d at 847. Cal-Am's attempts to
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depose Marina's counsel were not peripheral activities or unsuccessful claims, but time spent on
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The question here is simply whether Cal-Am expended that time reasonably. It was
reasonable for Cal-Am to attempt to depose Marina's counsel based on their personal knowledge
of this case, even if the attempt was unsuccessful. These hours should not be reduced or
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eliminated.
iii.
MisceUaneous Services
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First, Marina argues for the removal of one hour for work monitoring the Ag Land
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Trust's environmental litigation against Marina on August 6, 2012, January 9, 2013, and August
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26, 2013. Marina contends that the work was not reasonably related to this litigation and did not
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contribute to the litigation result. Cal-Am responds that the Ag Land Trust litigation was
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believed to be a key issue pertaining to Collins and RMC such that the services were related to
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1 this litigation and contributed to the successful outcome. The time entries at issue reflect time
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spent monitoring specific appeals. The time (1 hr.) does not appear to be related to this case.
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Second, Marina argues that the fee request should be reduced by 2. 7 hours for tasks
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related to potential litigation with RMC. Opposition, 12. Cal-Am agrees. Reply, 9.
Third, Marina asserts that the fee request should be reduced by .5 hours for work related
to future litigation against Marina. Opposition, 12. Cal-Am agrees. Reply, 9.
Fourth, Marina contends that 7 hours over six time entries had nothing to do with this
litigation. Opposition, 12. Cal-Am agrees as to four of the entries covering 4.8 hours. Reply, 9.
The parties dispute two entries: 12/2/14 and 1/13/15. Neither party provides substantial
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argument here. The entry regarding a 'show case order' does not appear to relate to this case, nor
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does the 1/13/15 entry ("REVIEW COUNTY'S MOTION TO DISMISS"). All 7 hours should
be removed.
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Fifth, Marina argues that a 14 hour entry on December 1, 2014 should be reduced by at
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least five hours because one of the tasks listed was attending trial, but there was no trial on that
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date. Opposition, 13. Cal-Am replies that "and appear at trial" was erroneously included in the
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description, but the time entry and description are otherwise accurate. Reply, 9. This was a
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confirmed at argument.
The total time to be removed is 11.2 hrs. and I use the blended rate for convenience,
creating a deduction of$3,958.08.
iv.
Fee Motion
In the notice of motion, Cal-Am requested a fee award of$1,372,421.20. Cal-Am stated
that it intended to update its fee request to include the fees incurred preparing the,motion, filing a
reply, and attending the hearing. !d. at 9 n.4. In the reply papers, Cal-Am provided a
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supplemental declaration documenting $40,389.20 incurred in preparing the fee motion and
estimating that an additional $5,000 would be incurred in preparing the reply and attending the
hearing. Supplemental Declaration of Michael J. Betz ~~5-6, Ex. B. This results in a total fee
request of$1,417,810.4. I deduct $59,680 + $3,958.08. The awardable fees are $1,3541,72.32.
B.
1.
Entitlement to Fees
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a.
c.c. 1717
Marina does not dispute that Monterey's entitlement to fees under C.C. 1717 was
established by the July 21, 2015 Order. Marina does not contest the issue in the context of this
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motion, reserving its argument for appeal.
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b.
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C.C.P. 1021.5
Monterey did not reply to Marina's arguments on the applicability of 1021.5. For
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reasons summarized above, Monterey has not sustained its burden of showing it is entitled to
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2.
Reasonableness of Fees
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The parties have agreed that reasonable fees are $480,651.50.
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Conclusion
Monterey's is entitled to $480,651.50 in fees. Cal-Am is entitled to fees of
$1,3541,72.32.
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.;.
I, DANIAL LEMIRE, a Deputy Clerk of the Superior Court of the County of San
Francisco; certify that I am not a party to the within action.
On ,. AUG 2 8 Z0\5.
& ServeXpress on the recipients designated on the Transaction Receipt located o~ the File &
ServeXpress website.
Dated:
AUG 28 2015
.,