San Francisco Baykeeper v. Sunnyvale

• Court: District Court, N.D. California
• Decided: March 25, 2024
• Docket: 5:20-cv-00824
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 SAN FRANCISCO BAYKEEPER, Lead Case No. 20-cv-00824-EJD Consolidated Case No. 20-cv-00826-EJD 9 Plaintiff, ORDER GRANTING IN PART 10 v. PLAINTIFF’S MOTION FOR AWARD OF INTERIM ATTORNEY’S FEES 11 CITY OF SUNNYVALE, et al., AND COSTS; REQUIRING PROVISION OF UNDERLYING 12 Defendants. BILLING RECORDS

13 Re: ECF No. 200 14

15 Plaintiff San Francisco Baykeeper (“Plaintiff” or “Baykeeper”) brings this suit against 16 Defendants City of Sunnyvale and City of Mountain View (together, “Defendants” or the “Cities”) 17 under the citizen suit enforcement provisions of the Federal Water Pollution Control Act (the 18 “Clean Water Act” or the “Act”), 33 U.S.C. §§ 1251, et seq., alleging that the Cities have 19 unlawfully discharged bacteria pollution from their municipal storm sewer systems into the San 20 Francisco Bay and its tributaries. See Second Am. Compl. (“Sunnyvale SAC”), ECF No. 140; 21 Second Am. Compl. (“Mountain View SAC,” and with the Sunnyvale SAC, the “SACs”), ECF 22 No. 141.1 On September 12, 2022, the Court issued an Order Granting Plaintiff’s Motion for 23 Partial Summary Judgment (the “Partial MSJ Order”). See Partial MSJ Order, ECF No. 139. 24 Now pending before the Court is Plaintiff’s Motion for Interim Attorney’s Fees and Costs (the 25

26 1 The SACs contain many identical or nearly identical allegations. When citing any such 27 allegation, the Court will cite to a singular “SAC” for the sake of readability, and will use the paragraph number of the Sunnyvale SAC. 1 “Motion”), in which Plaintiff argues that an interim award is appropriate under 33 U.S.C. § 2 1365(d) because the Partial MSJ Order made Plaintiff a prevailing party entitled to fees and costs. 3 See Mot., ECF No. 200. Defendants oppose the Motion, and the Court heard oral argument on 4 February 15, 2024. See ECF No. 203. Having reviewed the parties’ written and oral arguments 5 and the governing law, the Court hereby GRANTS IN PART the Motion for the reasons discussed 6 below, and requires that Baykeeper provide the billing records underlying its request. 7 I. BACKGROUND 8 A. Parties 9 Baykeeper is a non-profit public benefit corporation organized under the laws of 10 the State of California with its main office in Oakland, California. SAC ¶ 9. Its mission is to 11 protect the San Francisco Bay (the “Bay”) from the biggest threats and hold polluters and government 12 agencies accountable to create healthy communities and help wildlife thrive. See Partial MSJ Order 5. 13 The City of Sunnyvale and the City of Mountain View are municipalities formed under the 14 laws of the State of California. Sunnyvale SAC ¶ 19; Mountain View SAC ¶ 19. 15 B. Relevant Factual and Procedural History 16 The Clean Water Act requires municipalities like the Cities to acquire a National Pollution 17 Discharge Elimination System (“NPDES”) permit for discharges from municipal separate storm 18 sewer systems (“MS4s”). See 33 U.S.C. § 1342(p)(2). Non-compliance with an NPDES permit 19 constitutes a violation of the Clean Water Act. 40 C.F.R. § 122.41. The San Francisco Bay 20 Regional Water Quality Control Board (“Regional Board”) is the state entity charged with issuing the 21 federally-enforceable NPDES permit at issue in this case. See Cal. Wat. Code §§ 13001, 13160, 22 13200(b), 13225. Pursuant to that authority, the Regional Board issued each Defendant an MS4 23 Permit on November 19, 2015. See Partial MSJ Order 3–4. 24 The MS4 Permit includes a provision entitled “Receiving Water Limitations, B.2,” which 25 prohibits MS4 discharges that cause or contribute to the violation of any applicable water quality 26 standards (“WQS”) for receiving waters. See id. at 4. WQS are maximum permissible pollutant 27 levels, expressed as numeric limits or in narrative terms, that are sufficiently stringent to protect public 1 health and enhance water quality, consistent with the designated use(s) of the water. See id. 2 From November 2017 to February 2019, Baykeeper sampled for bacteria at several of 3 Defendants’ MS4 outfalls and within the surface waters into which the outfalls discharge. See id. 4 at 5. On February 4, 2020, Baykeeper initiated this lawsuit against each Defendant, arguing the 5 Cities were in violation of the Clean Water Act. See Compl., ECF No. 1; see also Compl., Case 6 No. 20-cv-00826 (N.D. Cal.), ECF No. 1 (pre-consolidation). Baykeeper filed an amended 7 complaint against each Defendant on April 28, 2020 (the “FACs”). See FAC, ECF No. 19; see 8 also FAC, Case No. 20-cv-00826, ECF No. 17. 2 On July 13, 2020, the Court granted the parties’ 9 stipulation to consolidate the cases. See ECF No. 39. Each Defendant filed an answer on January 10 11, 2021. See ECF Nos. 58, 59. 11 On August 26, 2021, following the Cities’ answers and discovery, Baykeeper filed a 12 motion for partial summary judgment on the FACs, seeking a judgment that the Cities are liable 13 for violating Receiving Water Limitation B.2 on three specific days (the “Sampling Days”): 14 January 17, 2019, February 4, 2019, and February 13, 2019. See ECF No. 81; Partial MSJ Order 15 7. Within a week of filing this motion, Baykeeper moved the Court for leave to file a second 16 amended complaint. See ECF No. 85. On September 16, 2021, the Cities filed a cross-motion for 17 summary judgment on the ground that Baykeeper lacked standing to bring this action, as well as 18 an opposition to Baykeeper’s request to file a second amended complaint. See ECF Nos. 91, 95. 19 The Court heard oral argument on the three motions for summary judgment and the motion to file 20 a second amended complaint, see ECF No. 130, and subsequently granted Baykeeper leave to file 21 the operative SACs on June 3, 2022, see ECF No. 133, and issued the Partial MSJ Order on 22 September 12, 2022, see Partial MSJ Order. 23 For the reasons described in the Partial MSJ Order, the Court determined that the Cities 24 violated Receiving Water Limitation B.2. on the Sampling Days, and that Baykeeper adequately 25 pled an ongoing violation to establish jurisdiction. See Partial MSJ Order 28–29 (finding ongoing 26

27 2 All subsequent docket citations refer to the lead case docket. 1 violation), 23–27 (finding Receiving Water Limitation B.2 violation). The Court therefore granted 2 Plaintiff’s motion for partial summary judgment, and denied Defendants’ cross-motion for 3 summary judgment for lack of standing. See id. at 35. 4 Four days later, on September 16, 2022, Baykeeper filed the operative SACs, which, like 5 the FACs, allege that the Cities violated the Clean Water Act, including by violating Receiving 6 Water Limitation B.2. See SAC ¶¶ 130–38. The Cities subsequently moved to dismiss the SACs, 7 and the Court denied the motion. See ECF Nos. 143, 194. 8 In March 2023, Baykeeper filed a motion for an interim award of attorney’s fees and costs 9 based on the Partial MSJ Order. See Appl. Interim Atty’s Fees & Costs (“Initial Fee Mot.”), ECF 10 No. 171. After the motion was fully briefed, the Supreme Court issued a decision, Sackett v. 11 United States EPA, 598 U.S. 651 (2023), and the Court granted the Cities leave to file a motion for 12 reconsideration of the Partial MSJ Order based on the decision. See ECF No. 183. The Court 13 concurrently terminated Baykeeper’s then-pending motion for an interim award, without prejudice 14 to re-noticing the motion following the Court’s decision on the reconsideration motion. See id. 15 The Court denied the Cities’ motion for reconsideration of the Partial MSJ Order on 16 December 11, 2023. See ECF No. 199. Baykeeper then filed the pending Motion on December 17 20, 2023, by re-noticing the March 2023 motion. See Mot. The Cities filed an opposition without 18 referencing their opposition to the March 2023 motion, see Opp’n, ECF No. 201, and Baykeeper 19 filed a reply both referencing its prior reply and responding to any new arguments made by the 20 Cities, see Reply, ECF No. 202.3 The Court heard oral argument on February 15, 2024. See ECF 21 No. 203. 22 II. LEGAL STANDARD 23 In general, “[u]nder the American Rule, ‘the prevailing litigant is ordinarily not entitled to 24 collect a reasonable attorney[] fee from the loser.’” Travelers Cas. & Sur. Co. v. Pac. Gas & Elec. 25 Co., 549 U.S. 43, 448 (2007) (quoting Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 26

27 3 In light of the apparent confusion, the Court will consider all arguments filed by the parties. 1 240, 247 (1975)). However, Section 505(d) of the Clean Water Act includes a fee shifting 2 provision that permits prevailing civil plaintiffs to seek attorney’s fees. See San Francisco 3 Baykeeper, Inc. v. Tosco Corp., 309 F.3d 1153, 1156 (9th Cir. 2002) (citing 33 U.S.C. § 1365(a), 4 (d)). Specifically, the Act “permits the district court to award costs and attorney’s fees to ‘any 5 prevailing or substantially prevailing party, whenever the court determines such award is 6 appropriate.’” Idaho Conservation League, Inc. v. Russell, 946 F.2d 717, 719 (9th Cir. 1991) 7 (quoting 33 U.S.C. § 1365(d)). To award attorney’s fees under the Clean Water Act, the district court 8 must find that (1) the fee applicant is a “prevailing or substantially prevailing party,” and (2) an 9 attorney’s fee award is “appropriate.” See Saint John’s Organic Farm v. Gem Cnty. Mosquito 10 Abatement Dist., 573 F.3d 1054, 1058 (9th Cir. 2009). 11 A. Prevailing or Substantially Prevailing Party 12 “Whether a party has prevailed or substantially prevailed is a factual question.” Idaho 13 Conservation League, 946 F.2d at 719. The party seeking fees must show that “(1) as a factual 14 matter, the relief sought by the lawsuit was in fact obtained as a result of having brought the 15 action, and (2) there was a legal basis for the plaintiffs' claim.” Id. (quoting Andrew v. Bowen, 837 16 F.2d 875, 877 (9th Cir. 1988)). Although the relief need not be “formal judicial relief,” id.—for 17 example, a settlement may confer prevailing party status—the fee applicant “must have obtained 18 judicially enforceable ‘actual relief on the merits of [its] claim that materially altered the legal 19 relationship between the parties,’” Saint John’s, 574 F.3d at 1058–59 (internal alterations and 20 citation omitted). “The threshold for sufficient relief to confer prevailing party status is not high.” 21 Id. at 1059. A party need only show that it is “succeeded on any significant issue in litigation 22 which achieved some benefit the parties sought in bringing suit.” Id. (quoting Tex. State Teachers 23 Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989)) (alteration omitted). 24 B. Appropriate Fees 25 In determining whether an attorney’s fee award is “appropriate” for purposes of the Clean 26 Water Act, “the district court may deny attorney’s fees to a prevailing plaintiff under § 1365(d) 27 only where there are ‘special circumstances.’” Saint John’s, 574 F.3d at 1063 (noting that “special 1 circumstances standard was first elaborated in Newman v. Piggie Park Enterps., Inc., 390 U.S. 400 2 (1968)). The district court therefore has “narrow” discretion to deny a fee award to a prevailing 3 plaintiff, and such a denial is “extremely rare.” Id. at 1064 (citations omitted). 4 “When there is ‘a complete absence of any showing of special circumstances to render the 5 award of an attorney’s fee unjust,’ a district court must award a reasonable fee.” Resurrection Bay 6 Conservation Alliance v. City of Seward, 640 F.3d 1087, 1094 (9th Cir. 2011) (alterations omitted) 7 (quoting Ackerley Commc’ns, Inc. v. City of Salem, 752 F.2d 1394, 1398 (9th Cir. 1985)). For 8 example, although “an extremely small amount of relief is sufficient to confer prevailing party 9 status,” the “nature and quality of relief may affect the amount of fees awarded.” Saint John’s, 10 574 F.3d at 1059. Courts generally determine reasonable fees using the lodestar method, i.e., by 11 multiplying the reasonable number of hours spent by a reasonable hourly rate.” See, e.g., United 12 States v. City of San Diego, 18 F. Supp. 2d 1090, 1102 (S.D. Cal. 1998) (citing Gates v. 13 Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992)). 14 III. DISCUSSION 15 Baykeeper seeks an interim award of $1,828,600.00—comprised of $1,591,055.95 in 16 attorney’s fees, $168,002.00 in expert fees, and $69,542.79 in other litigation costs—on the 17 ground that it is a prevailing party following the Partial MSJ Order’s finding that the Cities 18 violated Receiving Water Limitation B.2 (and thus the Clean Water Act) on the Sampling Days. 19 See Mot. 3; Initial Fee Mot. 6. The Cities oppose the Motion, arguing that Baykeeper’s Initial 20 Motion was noncompliant with applicable procedural rules, see Opp’n 2–4; that Baykeeper is not 21 a prevailing party, see id. at 4–8; and that Baykeeper’s fee request is not reasonable, see id. at 8– 22 23. The Cities additionally argue that any award should be conditioned on Baykeeper’s posting of 23 a bond to ensure the availability of recovery given the interim stage of this action. See id. at 23– 24 24. The Court addresses these arguments in turn. 25 A. Procedural Compliance 26 The Cities argue as a threshold matter that the Motion is untimely under Federal Rule of 27 Civil Procedure 54 and the corresponding local rule, and that Baykeeper additionally failed to 1 comply with Local Rule 54’s meet and confer requirements. See Opp’n 2–4. Baykeeper responds 2 that these rules are inapplicable because the Partial MSJ Order was not a judgment for the 3 purposes of either the federal or local rule, and because its meet and confer process was adequate. 4 See Reply in Supp. of Appl. Interim Atty’s Fees & Costs (“Initial Reply”) 14–15, ECF No. 177. 5 The Court agrees with Baykeeper that neither Federal Rule of Civil Procedure 54 nor Local 6 Rule 54 bar Baykeeper’s request for relief. Federal Rule of Civil Procedure 54 addresses motions 7 for attorney’s fees following judgment, and defines “‘[j]udgment’ as used in these rules [to] 8 include[] . . . any order from which an appeal lies.” Fed. R. Civ. P. 54(a). A partial summary 9 judgment is not an appealable, see, e.g., Williamson v. UNUM Life Ins. Co., 160 F.3d 1247, 1250 10 (9th Cir. 1998), and Rule 54 is therefore inapposite to the present Motion. Civil Local Rule 54 is 11 based on the federal rule, and therefore similarly inapt. See Civil L.R. 54-5(a) (“Motions for 12 awards of attorney’s fees . . . must be served and filed within 14 days of entry of judgment.”); see 13 also Commentary, Civil L.R. 54-5(a) (noting the time periods set by Fed. R. Civ. P. 54(d)(2)). 14 The Court therefore rejects the Cities’ arguments that the Motion must be denied based on 15 Baykeeper’s purported failure to comply with these rules, and turns to the two-step analysis for 16 awarding attorney’s fees under the Clean Water Act. 17 B. Whether Baykeeper is a “Prevailing or Substantially Prevailing Party” 18 Baykeeper argues that it is a prevailing party because it established the Cities’ liability for 19 violating Receiving Water Limitation B.2 on the Sampling Days, and therefore successfully 20 obtained the declaratory relief sought in this action. See Initial Mot. 15–16. The Cities argue that 21 Baykeeper has not shown “a judicially-enforceable resolution or relief on the merits of its claim 22 qualifying it as a prevailing party” because (1) the Clean Water Act requires that the basis for a fee 23 award be a “final order” and the Partial MSJ Order is not sufficiently final; (2) the Partial MSJ 24 Order does not change the legal relationship between the parties, such as by creating a legal 25 obligation on the part of the Cities; and (3) Baykeeper has not achieved its stated “primary 26 objective” of addressing the Cities’ unlawful discharge of bacteria pollution. See Opp’n 4–8. 27 Although the Cities are correct in noting that orders granting partial summary judgment are 1 generally not considered final—for example, they are not appealable, see Williamson, 160 F.3d at 2 1250—the case law makes clear that a Clean Water Act plaintiff who succeeds on a motion for 3 partial summary judgment is entitled to fees under 33 U.S.C. § 1365(d) if the plaintiff establishes 4 the “prevailing party” and “appropriateness” prongs of the analysis. See Resurrection Bay, 640 5 F.3d at 1089, 1091 (reviewing district court’s decision on § 1365(d) attorney’s fees following 6 order granting partial summary judgment under two-step framework); see also, e.g., S.F. 7 Baykeeper v. W. Bay Sanitary Dist. (“West Bay Sanitary”), No. C–09–5676, 2011 WL 6012936, at 8 *5 (N.D. Cal. Dec. 1, 2011) (finding plaintiff established prevailing party status for purposes of § 9 1365 where court granted plaintiff’s motion for partial summary judgment). The Court therefore 10 rejects the Cities’ first argument that the Partial MSJ Order may not be the basis for a § 1365(d) 11 motion for interim attorney’s fees because it granted only partial summary judgment. 12 With respect to the Cities’ second and third arguments—essentially, that the Partial MSJ 13 Order did not provide Baykeeper sufficient relief to make Baykeeper a prevailing or substantially 14 prevailing party—the Court relies on the Ninth Circuit’s guidance that “[t]he threshold for 15 sufficient relief to confer prevailing party status is not high.” Saint John’s, 574 F.3d at 1059. 16 Here, Baykeeper obtained a legal conclusion that the Cities violated the Clean Water Act on at 17 least the Sampling Days. See Partial MSJ Order 35. Although the remedies, if any, for these 18 violations are not yet particularized, so that the Cities have no current legal obligation stemming 19 from the Partial MSJ Order, Baykeeper has established the first prong of its prayer for relief on 20 which further relief, such as civil monetary penalties for each violation of the Clean Water Act, 21 may rest. See Sunnyvale SAC 19; Mountain View SAC 18. As such, Baykeeper has “succeeded 22 on a[] significant issue in litigation which achieved some benefit [it] sought in bringing suit.” 23 Saint John’s, 574 F.3d at 1059. Thus, “as a practical matter, [Baykeeper is] in a markedly better 24 position than at the outset of [its] lawsuit.” West Bay Sanitary, 2011 WL 6012936, at *3 (quoting 25 Animal Lovers Volunteer Ass’n, Inc. v. Carlucci, 867 F.2d 1224, 1227 (9th Cir. 1989)). 26 The Court accordingly finds that Baykeeper has established it is a prevailing party for the 27 purposes of § 1365(d). 1 C. Whether the Requested Award is Appropriate 2 Unless there exist “special circumstances” indicating that a fee award would be 3 inappropriate, the Court must award reasonable attorney’s fees to a prevailing plaintiff. See Saint 4 John’s, 574 F.3d at 1063; Resurrection Bay, 640 F.3d at 1094. 5 1. Special Circumstances 6 Baykeeper argues that there are no special circumstances here which would permit the 7 Court to deny an award, and that its requested fees and costs are reasonable. See Initial Mot. 17– 8 27. The Cities argue that there exist special circumstances that warrant denying attorney’s fees 9 because the Partial MSJ Order is not sufficiently final or enforceable, and, relatedly, Baykeeper 10 has over-represented the success of its lawsuit. See Opp’n 8–10. 11 As noted above, courts evaluate, with some regularity, § 1365(d) motions based on orders 12 granting partial summary judgment. See supra, at Part III(B). The Court accordingly rejects the 13 Cities’ arguments that there exists here a “special circumstance” because the Partial MSJ Order 14 does not dispose of the entire action or grant final relief. See, e.g., Resurrection Bay, 640 F.3d at 15 1093 (concluding no special circumstances existed to deny award where district court granted 16 partial summary judgment, even though plaintiff was not granted full relief sought and defendant 17 “had not changed any behavior that existed prior to the lawsuit”). 18 Further, the Court finds that Baykeeper has accurately represented its current position, 19 which is that the Court has found the Cities to have violated Receiving Water Limitation B.2 on 20 the Sampling Days. The Court notes that the Cities appear to state that the Partial MSJ Order did 21 not go as far as to establish any liability because its conclusion stated that “testing results from 22 2019 support a reasonable inference that Defendants violated Receiving Water Limitation B.3d 23 on” the Sampling Days. See Opp’n 8 (quoting Partial MSJ Order 35). However, just prior to the 24 quoted phrase, the same sentence provides that “Plaintiff’s motion for partial summary judgment 25 is GRANTED.” Partial MSJ Order 35. The Partial MSJ Order noted at the beginning of its 26 analysis that Plaintiff sought “partial summary judgment that . . . (iii) Defendants are liable for 27 violating Receiving Water Limitation B.2” on the Sampling Days. Id. at 7. To the extent the 1 Court’s use of a colon between the two phrases in its conclusion section caused any confusion, the 2 Court here clarifies that the colon was used as a substitute for the word “because,” i.e., “Plaintiff’s 3 motion for partial summary judgment is GRANTED [because] testing results from 2019 support a 4 reasonable inference that Defendants violated Receiving Water Limitation B.2 on January 17, 2019, 5 February 4, 2019, and February 13, 2019.” 6 For these reasons, the Court finds that there are no special circumstances warranting a 7 denial of attorney’s fees and costs. 8 2. Reasonableness of Fees 9 The Court must now determine a reasonable fee award based on the relief Baykeeper 10 obtained through the Partial MSJ Order. See Resurrection Bay, 640 F.3d at 1094 (“When there is 11 ‘a complete absence of any showing of special circumstances to render the award of an attorney’s 12 fee unjust,’ a district court must award a reasonable fee.”) (citation omitted); Saint John’s, 574 13 F.3d at 1059 (“[T]he nature and quality of relief may affect the amount of fees awarded.”). Given 14 that the Partial MSJ Order provides only modest relief—a finding of liability as to three specific 15 days, and that Baykeeper has standing to bring the action—the Court is not yet certain that the 16 entirety of the requested award, which Baykeeper states constituted 71% of its total hours at the 17 time of filing the Initial Motion, is “reasonably related to securing liability at summary judgment.” 18 Initial Reply 4; see also Initial Mot. 18–23. Baykeeper has provided helpful summaries in the 19 declarations in support of the Initial Motion and Initial Reply, see ECF Nos. 171-3–11, 177-1–3, 20 but not the underlying billing records. The Court will therefore defer its decision on the final 21 amount of the fee award until its review of those records. 22 D. Necessity of Bond Posting 23 The Cities request that any interim fee award be conditioned upon the posting of a bond 24 “[d]ue to Plaintiff’s very large interim fees request.” Opp’n 24. Because the Court has not yet 25 determined the amount of the fee award, it need not and does not reach this argument. 26 IV. CONCLUSION 27 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 10 IT IS SO ORDERED. 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