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SUPERIOR COURT OF CALIFORNIA
OUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Aug-28-2015 9:20 am
Case Number: CGC-13-528312
Filing Date: Aug-25-2015 9:18
Filed
by:
DANIAL LEMIRE
Juke Box:
1
Image: 05052542
ORDER
CALIFORNIA-AMERICAN WATER COMPANY CALIFORNIA CO VS. MARINA
COAST WATER DISTRICT et al
1 C05052542
Instructions
Please place this sheet on top o the document to be scanned.
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F ILE
San Francisco ounty Sup rior Court
AUG 2 5 2 15
Y ~ L E ~ ~ t e D ~ ~ ~ C ~ ;
SUPERIOR COURT
OF
CALIFORNIA
COUNTY OF SAN FRANCISCO
CALIFORNIA-AMERICAN WATER CO.,
Plaintiff,
vs
MARINA COAST WATER DISTRICT, ET
AL.,
Defendants.
AND RELATED CROSS ACTIONS
Case No. CGC 13-528312
ORDER GRANTING IN PART AND
DENYING IN PART MOTIONS FOR
ATTORNEYS FEES OF CALIFORNIA
AMERICAN WATER
CO
AND
MONTEREY COUNTY WATER
RESOURCES AGENCY
I hear argument on the captioned motion August 25, 2015. I have previously determined
that Cal-Am and Monterey are prevailing parties under C.C.P.
§
1032 and C.C.
§
1717. July 21,
2015 Order, 1-3. They now move for attorneys fees. Cal-Am filed two separate fee motions.
One is brought under both C.C.
§
1717 and C.C.P.
§
1021.5. The other is brought pursuant to
C.C.P.
§
2033.420. Monterey filed a single fee motion, under C.C.
§
1717 and C.C.P.
§
1021.5.
1
Requests for udicial Notice
Cal-Am s requests for judicial notice ofvarious documents filed in this action are
granted.
1
After the close ofbriefing 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 he Court ofAppeal to resolve the
§
1717 issue in
anyway.
I
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Evidentiary Objections
Cal-Am objected to portions of hree declarations filed by Marina. Only one is arguably
material, that of
Mark
Fogelman.
He
has some basis
to make
the conclusions
he
does on the
reasonableness of rates, and on the discounts given to public agencies and public utilities. The
objections are overruled.
Analysis
A
Cal-Am s Fee Motions
1.
Entitlement to Fees
a.
C.C.
§
1717
Marina does not dispute
Cal-Am s
entitlement
to
fees under C.C. § 1717 for present
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
vindicate
an
important public right; (2) conferred a significant benefit on the general public
or
a
large class of persons; and (3) was necessary and imposed a financial burden on plaintiffs that
was out ofproportion to their individual stake in the matter. Center
or
Biological Diversity v
County
o
San Bernardino
188 Cal.App.4th 603, 611 (2010).
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
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
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. C C P
§
2033 420
In
a separate motion, Cal-Am asserts that
it
is entitled to attorneys' fees as a result
of
Marina's unreasonable denial
of
various Requests for Admission
(RF
As). Fees recoverable
under this rubric are limited to those which, among other constraints, are "the reasonable
expenses incurred in
making that proof," that is, the proof
of
he specific RFA at issue. C.C.P. §
2033.420.
See generally
Wei Brown,
et
al.,
CALIFORNIA PRACTICE
GUIDE:
CIVIL
PROCEDURE
BEFORE
TRIAL
U U
8:1405.1 et seq.; 8:1413.1a(2015); Garcia v Hyster Co. 28 Cal. App. 4th
724, 736-37 (1994). Cal-Am has not established a link between a given RFA and specific hours
spent in proving it.
2
Reasonableness ofFees
Cal-Am's attorneys provided a 20% discount from their regular hourly rates. With the
discollJ ts, the attorneys' and paralegals' actual rates ranged from $552 (2014)-$580 (2015) to
$276. The blended rate for attorneys was $353.40
per
hour.
Marina 's citation to
Syers Properties l l Inc.
v
Rankin
226 Cal.App.4th 691,701-02
(2014) and its discussion
of
the
affiy
Matrix is not useful here because no party provided the
"Locality Pay Tables" that can be used to adjust the rates in the Laffey Matrix for the
San
Francisco Bay Area.
See Syers
226 Cal.App.4th at 695-96.
7
2
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.
3
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1 I find the rates for this complex case are reasonable, and indeed below market.
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b Hours Worked
Marina identified three categories of services that
it
contends should be removed.
i
Settlement with Monterey and Seeking Settlement
Approval from CPUC
Marina argues that time spent related to settlement efforts between Cal-Am and Monterey
related to this litigation
and
other litigation, including seeking settlement approval before the
California Public Utilities Commission (CPUC), i s not recoverable. Wallace
v.
Consumers
Coop.
o Berkeley
Inc.
170 Cal.App.3d
836,847
(1985) (when computing time expended the
court should ordinarily exclude peripheral activities unless they
may
be shown to have
contributed to the result reached. Cal-Am explains only that monitoring the CPUC proceedings
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
Cal-Am s
bill where single entries included challenged and unchallenged activity and that the
improper inclusion
of
hese 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
failed to identify any specific error
in
Marina s attempts to do so.
And of
course, Cal-Am did
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
these t4ne entries, the briefs contain only cursory statements as
to
whether that activity
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
20% discount, or $59,680.
ii Depositions
of
Counsel Prohibited
y
Protective Order
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.
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
o
the action, and should not include peripheral activities
unl ss
they may be shown to have
contributed to the result reached. Wallace
170
Cal.App.3d at 847. Cal-Am's attempts to
depose Marina's counsel were not peripheral activities or unsuccessful claims, but time spent on
this litigation prosecuting a successful claim.
The question here is simply whether Cal-Am expended that time reasonably.
t
was
reasonable for Cal-Am
to
attempt to depose Marina's counsel based on their personal knowledge
o this case, even i he attempt was unsuccessful. These hours should not be reduced or
eliminated.
iii
MisceUaneous
Services
First, Marina argues for the removal o one hour for work monitoring the Ag Land
Trust's environmental litigation against Marina on August 6, 2012, January
9
2013, and August
26, 2013. Marina contends that the work was not reasonably related to this litigation and did not
contribute to the litigation result. Cal-Am responds that the Ag Land Trust litigation was
believed to be a key issue pertaining to Collins and RMC such that the services were related to
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this litigation and contributed to the successful outcome.
The
time entries a t issue reflect time
spent monitoring specific appeals.
The
time 1 hr.) does not appear to
be
related
to
this case.
Second, Marina argues tha t the fee request should be reduced
by
2. 7 hours for tasks
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
argument here.
The
entry regarding a
'show
case order' does
not
appear
to
relate to this case, nor
does the 1/13/15 entry ( REVIEW
COUNTY'S
MOTION TO DISMISS ). All 7 hours should
be
removed.
Fifth, Marina argues that a 14 hour entry
on
December 1, 2014 should
be
reduced
by
at
least five hours because one
of he
tasks listed was attending trial, but there was no trial
on
that
date. Opposition, 13. Cal-Am replies that
and
appear at trial was erroneously included
in
the
description, but the time entry and description are otherwise accurate. Reply, 9. This was a
confirmed at argument.
The total time to
be
removed is 11.2 hrs. and I use the blended rate for convenience,
22 creating a deduction of$3,958.08.
23
iv Fee Motion
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n
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.
n
the reply papers, Cal-Am provided a
-6 -
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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
Monterey s Fee
Mojion
1.
Entitlement
to Fees
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
motion, reserving its argument for appeal.
b.
C.C.P. §
1021.5
14 Monterey did
not
reply to Marina's arguments
on
the applicability
of§
1021.5.
For
15 reasons summarized above, Monterey has not sustained its burden of showing
it
is entitled to
16 fees under this statute.
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2
Reasonableness of
Fees
The parties have agreed that reasonable fees are 480,651.50.
Conclusion
Monterey's is entitled to 480,651.50
in
fees. Cal-Am is entitled to fees
of
1,3541,72.32.
Dated: August 25, 2015
Judge
OfThe
Superior Court
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CERTIFIC TE OF ELE TRONI SERVICE
CCP 1010.6 6)
CRC
2260 g))
·
;
I DANIAL LEMIRE, a Deputy Clerk of he Superior
Court
of he County of
San
Francisco; certify that I am not a
party
to
the
within
action.
n · . AUG
8Z0\5
,
I electronically served-THE AITACHEJ) ORDER via File
ServeXpress
on
the recipients designated
on
the Transaction Receipt located ~ the File
ServeXpress website.
Dated:
UG
8 2015
.
·
·
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