San Francisco Baykeeper v. Sunnyvale

Opinion

SAN FRANCISCO BAYKEEPER, Lead Case No. 20-cv-00824-EJD Consolidated Case No. 20-cv-00826-EJD Plaintiff, ORDER GRANTING IN PART v. PLAINTIFF’S MOTION FOR AWARD OF INTERIM ATTORNEY’S FEES CITY OF SUNNYVALE, et al., AND COSTS; REQUIRING PROVISION OF UNDERLYING Defendants. BILLING RECORDS

Re: ECF No. 200

Plaintiff San Francisco Baykeeper (“Plaintiff” or “Baykeeper”) brings this suit against Defendants City of Sunnyvale and City of Mountain View (together, “Defendants” or the “Cities”) under the citizen suit enforcement provisions of the Federal Water Pollution Control Act (the “Clean Water Act” or the “Act”), 33 U.S.C. §§ 1251, et seq., alleging that the Cities have unlawfully discharged bacteria pollution from their municipal storm sewer systems into the San Francisco Bay and its tributaries. See Second Am. Compl. (“Sunnyvale SAC”), ECF No. 140; Second Am. Compl. (“Mountain View SAC,” and with the Sunnyvale SAC, the “SACs”), ECF No. 141.1 On September 12, 2022, the Court issued an Order Granting Plaintiff’s Motion for Partial Summary Judgment (the “Partial MSJ Order”). See Partial MSJ Order, ECF No. 139. Now pending before the Court is Plaintiff’s Motion for Interim Attorney’s Fees and Costs (the

1 The SACs contain many identical or nearly identical allegations. When citing any such allegation, the Court will cite to a singular “SAC” for the sake of readability, and will use the paragraph number of the Sunnyvale SAC. “Motion”), in which Plaintiff argues that an interim award is appropriate under 33 U.S.C. § 1365(d) because the Partial MSJ Order made Plaintiff a prevailing party entitled to fees and costs. See Mot., ECF No. 200. Defendants oppose the Motion, and the Court heard oral argument on February 15, 2024. See ECF No. 203. Having reviewed the parties’ written and oral arguments and the governing law, the Court hereby GRANTS IN PART the Motion for the reasons discussed below, and requires that Baykeeper provide the billing records underlying its request. A. Parties Baykeeper is a non-profit public benefit corporation organized under the laws of the State of California with its main office in Oakland, California. SAC ¶ 9. Its mission is to protect the San Francisco Bay (the “Bay”) from the biggest threats and hold polluters and government agencies accountable to create healthy communities and help wildlife thrive. See Partial MSJ Order 5. The City of Sunnyvale and the City of Mountain View are municipalities formed under the laws of the State of California. Sunnyvale SAC ¶ 19; Mountain View SAC ¶ 19. B. Relevant Factual and Procedural History The Clean Water Act requires municipalities like the Cities to acquire a National Pollution Discharge Elimination System (“NPDES”) permit for discharges from municipal separate storm sewer systems (“MS4s”). See 33 U.S.C. § 1342(p)(2). Non-compliance with an NPDES permit constitutes a violation of the Clean Water Act. 40 C.F.R. § 122.41. The San Francisco Bay Regional Water Quality Control Board (“Regional Board”) is the state entity charged with issuing the federally-enforceable NPDES permit at issue in this case. See Cal. Wat. Code §§ 13001, 13160, 13200(b), 13225. Pursuant to that authority, the Regional Board issued each Defendant an MS4 Permit on November 19, 2015. See Partial MSJ Order 3–4. The MS4 Permit includes a provision entitled “Receiving Water Limitations, B.2,” which prohibits MS4 discharges that cause or contribute to the violation of any applicable water quality standards (“WQS”) for receiving waters. See id. at 4. WQS are maximum permissible pollutant levels, expressed as numeric limits or in narrative terms, that are sufficiently stringent to protect public health and enhance water quality, consistent with the designated use(s) of the water. See id. From November 2017 to February 2019, Baykeeper sampled for bacteria at several of Defendants’ MS4 outfalls and within the surface waters into which the outfalls discharge. See id. at 5. On February 4, 2020, Baykeeper initiated this lawsuit against each Defendant, arguing the Cities were in violation of the Clean Water Act. See Compl., ECF No. 1; see also Compl., Case No. 20-cv-00826 (N.D. Cal.), ECF No. 1 (pre-consolidation). Baykeeper filed an amended complaint against each Defendant on April 28, 2020 (the “FACs”). See FAC, ECF No. 19; see also FAC, Case No. 20-cv-00826, ECF No. 17. 2 On July 13, 2020, the Court granted the parties’ stipulation to consolidate the cases. See ECF No. 39. Each Defendant filed an answer on January 11, 2021. See ECF Nos. 58, 59. On August 26, 2021, following the Cities’ answers and discovery, Baykeeper filed a motion for partial summary judgment on the FACs, seeking a judgment that the Cities are liable for violating Receiving Water Limitation B.2 on three specific days (the “Sampling Days”): January 17, 2019, February 4, 2019, and February 13, 2019. See ECF No. 81; Partial MSJ Order 7. Within a week of filing this motion, Baykeeper moved the Court for leave to file a second amended complaint. See ECF No. 85. On September 16, 2021, the Cities filed a cross-motion for summary judgment on the ground that Baykeeper lacked standing to bring this action, as well as an opposition to Baykeeper’s request to file a second amended complaint. See ECF Nos. 91, 95. The Court heard oral argument on the three motions for summary judgment and the motion to file a second amended complaint, see ECF No. 130, and subsequently granted Baykeeper leave to file the operative SACs on June 3, 2022, see ECF No. 133, and issued the Partial MSJ Order on September 12, 2022, see Partial MSJ Order. For the reasons described in the Partial MSJ Order, the Court determined that the Cities violated Receiving Water Limitation B.2. on the Sampling Days, and that Baykeeper adequately pled an ongoing violation to establish jurisdiction. See Partial MSJ Order 28–29 (finding ongoing

2 All subsequent docket citations refer to the lead case docket. violation), 23–27 (finding Receiving Water Limitation B.2 violation). The Court therefore granted Plaintiff’s motion for partial summary judgment, and denied Defendants’ cross-motion for summary judgment for lack of standing. See id. at 35. Four days later, on September 16, 2022, Baykeeper filed the operative SACs, which, like the FACs, allege that the Cities violated the Clean Water Act, including by violating Receiving Water Limitation B.2. See SAC ¶¶ 130–38. The Cities subsequently moved to dismiss the SACs, and the Court denied the motion. See ECF Nos. 143, 194. In March 2023, Baykeeper filed a motion for an interim award of attorney’s fees and costs based on the Partial MSJ Order. See Appl. Interim Atty’s Fees & Costs (“Initial Fee Mot.”), ECF No. 171. After the motion was fully briefed, the Supreme Court issued a decision, Sackett v. United States EPA, 598 U.S. 651 (2023), and the Court granted the Cities leave to file a motion for reconsideration of the Partial MSJ Order based on the decision. See ECF No. 183. The Court concurrently terminated Baykeeper’s then-pending motion for an interim award, without prejudice to re-noticing the motion following the Court’s decision on the reconsideration motion. See id. The Court denied the Cities’ motion for reconsideration of the Partial MSJ Order on December 11, 2023. See ECF No. 199. Baykeeper then filed the pending Motion on December 20, 2023, by re-noticing the March 2023 motion. See Mot. The Cities filed an opposition without referencing their opposition to the March 2023 motion, see Opp’n, ECF No. 201, and Baykeeper filed a reply both referencing its prior reply and responding to any new arguments made by the Cities, see Reply, ECF No. 202.3 The Court heard oral argument on February 15, 2024. See ECF No. 203. In general, “[u]nder the American Rule, ‘the prevailing litigant is ordinarily not entitled to collect a reasonable attorney[] fee from the loser.’” Travelers Cas. & Sur. Co. v. Pac. Gas & Elec. Co., 549 U.S. 43, 448 (2007) (quoting Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S.

3 In light of the apparent confusion, the Court will consider all arguments filed by the parties. 240, 247 (1975)). However, Section 505(d) of the Clean Water Act includes a fee shifting provision that permits prevailing civil plaintiffs to seek attorney’s fees. See San Francisco Baykeeper, Inc. v. Tosco Corp., 309 F.3d 1153, 1156 (9th Cir. 2002) (citing 33 U.S.C. § 1365(a), (d)). Specifically, the Act “permits the district court to award costs and attorney’s fees to ‘any prevailing or substantially prevailing party, whenever the court determines such award is appropriate.’” Idaho Conservation League, Inc. v. Russell, 946 F.2d 717, 719 (9th Cir. 1991) (quoting 33 U.S.C. § 1365(d)). To award attorney’s fees under the Clean Water Act, the district court must find that (1) the fee applicant is a “prevailing or substantially prevailing party,” and (2) an attorney’s fee award is “appropriate.” See Saint John’s Organic Farm v. Gem Cnty. Mosquito Abatement Dist., 573 F.3d 1054, 1058 (9th Cir. 2009). A. Prevailing or Substantially Prevailing Party “Whether a party has prevailed or substantially prevailed is a factual question.” Idaho Conservation League, 946 F.2d at 719. The party seeking fees must show that “(1) as a factual matter, the relief sought by the lawsuit was in fact obtained as a result of having brought the action, and (2) there was a legal basis for the plaintiffs' claim.” Id. (quoting Andrew v. Bowen, 837 F.2d 875, 877 (9th Cir. 1988)). Although the relief need not be “formal judicial relief,” id.—for example, a settlement may confer prevailing party status—the fee applicant “must have obtained judicially enforceable ‘actual relief on the merits of [its] claim that materially altered the legal relationship between the parties,’” Saint John’s, 574 F.3d at 1058–59 (internal alterations and citation omitted). “The threshold for sufficient relief to confer prevailing party status is not high.” Id. at 1059. A party need only show that it is “succeeded on any significant issue in litigation which achieved some benefit the parties sought in bringing suit.” Id. (quoting Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989)) (alteration omitted). B. Appropriate Fees In determining whether an attorney’s fee award is “appropriate” for purposes of the Clean Water Act, “the district court may deny attorney’s fees to a prevailing plaintiff under § 1365(d) only where there are ‘special circumstances.’” Saint John’s, 574 F.3d at 1063 (noting that “special circumstances standard was first elaborated in Newman v. Piggie Park Enterps., Inc., 390 U.S. 400 (1968)). The district court therefore has “narrow” discretion to deny a fee award to a prevailing plaintiff, and such a denial is “extremely rare.” Id. at 1064 (citations omitted). “When there is ‘a complete absence of any showing of special circumstances to render the award of an attorney’s fee unjust,’ a district court must award a reasonable fee.” Resurrection Bay Conservation Alliance v. City of Seward, 640 F.3d 1087, 1094 (9th Cir. 2011) (alterations omitted) (quoting Ackerley Commc’ns, Inc. v. City of Salem, 752 F.2d 1394, 1398 (9th Cir. 1985)). For example, although “an extremely small amount of relief is sufficient to confer prevailing party status,” the “nature and quality of relief may affect the amount of fees awarded.” Saint John’s, 574 F.3d at 1059. Courts generally determine reasonable fees using the lodestar method, i.e., by multiplying the reasonable number of hours spent by a reasonable hourly rate.” See, e.g., United States v. City of San Diego, 18 F. Supp. 2d 1090, 1102 (S.D. Cal. 1998) (citing Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992)). Baykeeper seeks an interim award of $1,828,600.00—comprised of $1,591,055.95 in attorney’s fees, $168,002.00 in expert fees, and $69,542.79 in other litigation costs—on the ground that it is a prevailing party following the Partial MSJ Order’s finding that the Cities violated Receiving Water Limitation B.2 (and thus the Clean Water Act) on the Sampling Days. See Mot. 3; Initial Fee Mot. 6. The Cities oppose the Motion, arguing that Baykeeper’s Initial Motion was noncompliant with applicable procedural rules, see Opp’n 2–4; that Baykeeper is not a prevailing party, see id. at 4–8; and that Baykeeper’s fee request is not reasonable, see id. at 8– 23. The Cities additionally argue that any award should be conditioned on Baykeeper’s posting of a bond to ensure the availability of recovery given the interim stage of this action. See id. at 23– 24. The Court addresses these arguments in turn. A. Procedural Compliance The Cities argue as a threshold matter that the Motion is untimely under Federal Rule of Civil Procedure 54 and the corresponding local rule, and that Baykeeper additionally failed to comply with Local Rule 54’s meet and confer requirements. See Opp’n 2–4. Baykeeper responds that these rules are inapplicable because the Partial MSJ Order was not a judgment for the purposes of either the federal or local rule, and because its meet and confer process was adequate. See Reply in Supp. of Appl. Interim Atty’s Fees & Costs (“Initial Reply”) 14–15, ECF No. 177. The Court agrees with Baykeeper that neither Federal Rule of Civil Procedure 54 nor Local Rule 54 bar Baykeeper’s request for relief. Federal Rule of Civil Procedure 54 addresses motions for attorney’s fees following judgment, and defines “‘[j]udgment’ as used in these rules [to] include[] . . . any order from which an appeal lies.” Fed. R. Civ. P. 54(a). A partial summary judgment is not an appealable, see, e.g., Williamson v. UNUM Life Ins. Co., 160 F.3d 1247, 1250 (9th Cir. 1998), and Rule 54 is therefore inapposite to the present Motion. Civil Local Rule 54 is based on the federal rule, and therefore similarly inapt. See Civil L.R. 54-5(a) (“Motions for awards of attorney’s fees . . . must be served and filed within 14 days of entry of judgment.”); see also Commentary, Civil L.R. 54-5(a) (noting the time periods set by Fed. R. Civ. P. 54(d)(2)). The Court therefore rejects the Cities’ arguments that the Motion must be denied based on Baykeeper’s purported failure to comply with these rules, and turns to the two-step analysis for awarding attorney’s fees under the Clean Water Act. B. Whether Baykeeper is a “Prevailing or Substantially Prevailing Party” Baykeeper argues that it is a prevailing party because it established the Cities’ liability for violating Receiving Water Limitation B.2 on the Sampling Days, and therefore successfully obtained the declaratory relief sought in this action. See Initial Mot. 15–16. The Cities argue that Baykeeper has not shown “a judicially-enforceable resolution or relief on the merits of its claim qualifying it as a prevailing party” because (1) the Clean Water Act requires that the basis for a fee award be a “final order” and the Partial MSJ Order is not sufficiently final; (2) the Partial MSJ Order does not change the legal relationship between the parties, such as by creating a legal obligation on the part of the Cities; and (3) Baykeeper has not achieved its stated “primary objective” of addressing the Cities’ unlawful discharge of bacteria pollution. See Opp’n 4–8. Although the Cities are correct in noting that orders granting partial summary judgment are generally not considered final—for example, they are not appealable, see Williamson, 160 F.3d at 1250—the case law makes clear that a Clean Water Act plaintiff who succeeds on a motion for partial summary judgment is entitled to fees under 33 U.S.C. § 1365(d) if the plaintiff establishes the “prevailing party” and “appropriateness” prongs of the analysis. See Resurrection Bay, 640 F.3d at 1089, 1091 (reviewing district court’s decision on § 1365(d) attorney’s fees following order granting partial summary judgment under two-step framework); see also, e.g., S.F. Baykeeper v. W. Bay Sanitary Dist. (“West Bay Sanitary”), No. C–09–5676, 2011 WL 6012936, at *5 (N.D. Cal. Dec. 1, 2011) (finding plaintiff established prevailing party status for purposes of § 1365 where court granted plaintiff’s motion for partial summary judgment). The Court therefore rejects the Cities’ first argument that the Partial MSJ Order may not be the basis for a § 1365(d) motion for interim attorney’s fees because it granted only partial summary judgment. With respect to the Cities’ second and third arguments—essentially, that the Partial MSJ Order did not provide Baykeeper sufficient relief to make Baykeeper a prevailing or substantially prevailing party—the Court relies on the Ninth Circuit’s guidance that “[t]he threshold for sufficient relief to confer prevailing party status is not high.” Saint John’s, 574 F.3d at 1059. Here, Baykeeper obtained a legal conclusion that the Cities violated the Clean Water Act on at least the Sampling Days. See Partial MSJ Order 35. Although the remedies, if any, for these violations are not yet particularized, so that the Cities have no current legal obligation stemming from the Partial MSJ Order, Baykeeper has established the first prong of its prayer for relief on which further relief, such as civil monetary penalties for each violation of the Clean Water Act, may rest. See Sunnyvale SAC 19; Mountain View SAC 18. As such, Baykeeper has “succeeded on a[] significant issue in litigation which achieved some benefit [it] sought in bringing suit.” Saint John’s, 574 F.3d at 1059. Thus, “as a practical matter, [Baykeeper is] in a markedly better position than at the outset of [its] lawsuit.” West Bay Sanitary, 2011 WL 6012936, at *3 (quoting Animal Lovers Volunteer Ass’n, Inc. v. Carlucci, 867 F.2d 1224, 1227 (9th Cir. 1989)). The Court accordingly finds that Baykeeper has established it is a prevailing party for the purposes of § 1365(d). C. Whether the Requested Award is Appropriate Unless there exist “special circumstances” indicating that a fee award would be inappropriate, the Court must award reasonable attorney’s fees to a prevailing plaintiff. See Saint John’s, 574 F.3d at 1063; Resurrection Bay, 640 F.3d at 1094. 1. Special Circumstances Baykeeper argues that there are no special circumstances here which would permit the Court to deny an award, and that its requested fees and costs are reasonable. See Initial Mot. 17– 27. The Cities argue that there exist special circumstances that warrant denying attorney’s fees because the Partial MSJ Order is not sufficiently final or enforceable, and, relatedly, Baykeeper has over-represented the success of its lawsuit. See Opp’n 8–10. As noted above, courts evaluate, with some regularity, § 1365(d) motions based on orders granting partial summary judgment. See supra, at Part III(B). The Court accordingly rejects the Cities’ arguments that there exists here a “special circumstance” because the Partial MSJ Order does not dispose of the entire action or grant final relief. See, e.g., Resurrection Bay, 640 F.3d at 1093 (concluding no special circumstances existed to deny award where district court granted partial summary judgment, even though plaintiff was not granted full relief sought and defendant “had not changed any behavior that existed prior to the lawsuit”). Further, the Court finds that Baykeeper has accurately represented its current position, which is that the Court has found the Cities to have violated Receiving Water Limitation B.2 on the Sampling Days. The Court notes that the Cities appear to state that the Partial MSJ Order did not go as far as to establish any liability because its conclusion stated that “testing results from 2019 support a reasonable inference that Defendants violated Receiving Water Limitation B.3d on” the Sampling Days. See Opp’n 8 (quoting Partial MSJ Order 35). However, just prior to the quoted phrase, the same sentence provides that “Plaintiff’s motion for partial summary judgment is GRANTED.” Partial MSJ Order 35. The Partial MSJ Order noted at the beginning of its analysis that Plaintiff sought “partial summary judgment that . . . (iii) Defendants are liable for violating Receiving Water Limitation B.2” on the Sampling Days. Id. at 7. To the extent the Court’s use of a colon between the two phrases in its conclusion section caused any confusion, the Court here clarifies that the colon was used as a substitute for the word “because,” i.e., “Plaintiff’s motion for partial summary judgment is GRANTED [because] testing results from 2019 support a reasonable inference that Defendants violated Receiving Water Limitation B.2 on January 17, 2019, February 4, 2019, and February 13, 2019.” For these reasons, the Court finds that there are no special circumstances warranting a denial of attorney’s fees and costs. 2. Reasonableness of Fees The Court must now determine a reasonable fee award based on the relief Baykeeper obtained through the Partial MSJ Order. See Resurrection Bay, 640 F.3d at 1094 (“When there is ‘a complete absence of any showing of special circumstances to render the award of an attorney’s fee unjust,’ a district court must award a reasonable fee.”) (citation omitted); Saint John’s, 574 F.3d at 1059 (“[T]he nature and quality of relief may affect the amount of fees awarded.”). Given that the Partial MSJ Order provides only modest relief—a finding of liability as to three specific days, and that Baykeeper has standing to bring the action—the Court is not yet certain that the entirety of the requested award, which Baykeeper states constituted 71% of its total hours at the time of filing the Initial Motion, is “reasonably related to securing liability at summary judgment.” Initial Reply 4; see also Initial Mot. 18–23. Baykeeper has provided helpful summaries in the declarations in support of the Initial Motion and Initial Reply, see ECF Nos. 171-3–11, 177-1–3, but not the underlying billing records. The Court will therefore defer its decision on the final amount of the fee award until its review of those records. D. Necessity of Bond Posting The Cities request that any interim fee award be conditioned upon the posting of a bond “[d]ue to Plaintiff’s very large interim fees request.” Opp’n 24. Because the Court has not yet determined the amount of the fee award, it need not and does not reach this argument. For the foregoing reasons, it here hereby ORDERED that: 1 1. Following the Court’s entry of the Partial MSJ Order, Baykeeper is a prevailing or 2 substantially prevailing party entitled to an appropriate attorney’s fee award under 3 33 U.S.C. § 1365(d); 4 2. Within 21 days of the entry of this order, Baykeeper shall provide the Court with an 5 in camera copy of the billing records underlying its award request, and may 6 coordinate with the Court’s courtroom depute to do so; and 7 3. No further briefing is required from the parties as to the reasonableness of the fee 8 request. 9 11 Dated: March 25, 2024 12

EDWARD J. DAVILA 14 United States District Judge 15 16

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Z 18 19 20 21 22 23 24 25 26 27 28 Case No.: 20-cv-00824-EJD ORDER GRANTING IN PART PLTF.’S MOT. FOR INTERIM ATTY.’S FEES AND COSTS