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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.

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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.

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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

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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

.

·

·