Preview
Geoffrey K. Willis (State Bar No. 126504)
Law Offices of Geoffrey Willis
2 Geoff Willis, A Professional Corporation
9891 Irvine Center Drive, Suite 200
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Irvine, CA 92618
4 Phone: (949) 374-3815
gwillis@geoffwillislaw.com
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6 Attorneys for Plaintiff
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8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF NAPA
1O RAJA DEVELOPPMENT CO., INC., a California Case No. 19CV000682
corporation; CASHEL, INC., an Alaska
11 corporation doing business in California as NAP A REPLY TO COUNTY DEFENDANTS'
CASHEL; and CARTER RANDALL OPPOSITION TO MOTION FOR ATTORNEY
12 CALLAHAN, and individual; FEES
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Plaintiffs,
14 Date: April 3, 2024
vs. Time: 8:30 a.m.
15 Dept.: A
NAPA SANITARY DISTRICT; and DOES 1-100,
16 Action filed: May 6, 2019
inclusive,
Trial date: None Set
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Defendants.
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NAPA COUNTY, A Political Subdivision of the
19 State of California,
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Real Part in Interest
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REPLY TO COUNTY DEFENDANTS' OPPOSITION TO MOTION FOR
ATTORNEY FEES
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2 I. PLAINTIFF IS THE PREVAILING PARTY AND IS ENTITLED TO ITS
3 ATTORNEY FEE
4 This case is now over and Plaintiffs (Raja Development Co., Inc., et al.) are the prevailing party.
5 Defendants have now taken all actions demanded in the Third Amended Complaint establishing that
6 Plaintiffs were the catalyst for these actions making them the prevailing party in the action. According to
7 the facts set forth by Defendants in their Motion for Judgment on the Pleadings, on March 21 , 2021 , in
8 direct response to this action, the Napa Sanitary District adopted Ordinance 112 which took effect on
9 July 1, 2021. Among other things, this Ordinance was based on the nexus study demanded by Plaintiffs
10 in the third Amended Complaint. The Ordinance also set a different and lower rate structure from that
11 charged to single-family residence as also demanded by Plaintiff in the Third Amended Complaint.
12 These two demands were the only two essential demands made by Plaintiffs in the Third Amended
13 Complaint and are concessions by Defendants that Plaintiffs' allegations in the third Amended Complaint
14 were true and accurate and demanded correction.
15 As admitted by the Defendants, Ordinance 112 changed the rate structure for the sewer service
16 charges at issue based upon a rate study conducted in 2020, While the District claims that it
17 "commissions such rate studies to ensure that sewer charges properly align with costs", the District had
18 never conducted a rate study about townhomes or condominiums in the almost 50 years the rate structure
19 had been in place. It was not until the filing in this law suit that Defendants took any steps at all to have
20 the fee charged to townhomes and condominiums adopted in the manner required by law. In its rate
21 study undertaken during and because of this litigation, the District, for the very first time, studied sewer
22 rates for townhomes and condominiums separately from single-family residences. In addition, the fee for
23 townhomes and condominiums had always been illegally set to the same level as the much higher rate
24 charged to single-family detached homes. This was a key demand of the Third Amended Complaint.
25 Following this study, and establishing the claims set forth in this action, the District for the first time ever
26 separated the sewer rates for townhomes and condominiums from the sewer rates for single-family
27 residences. Just as alleged in the Third Amended Complaint in this action, the District found that the
28 impacts of townhomes and condominiums were significantly less than single family residences. In fact,
REPLY TO COUNTY DEFENDANTS' OPPOSITION TO MOTION FOR FEES
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the rate structure established by the District continues to reduce charges to townhomes and
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condominiums even more over the next 5-10 years - almost as if they didn't want to admit how wrong
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they were before this action.
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When Plaintiffs brought this action, it was the catalyst to the actions taken by the District to bring
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its actions into compliance with the law as described in this action. Without the Plaintiffs' actions,
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owners oftownhomes and condominiums would still be paying an illegal fee that had never been
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subjected to the required study and/or adopted by a 2/3 vote of the people.
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In addition, the timing of the adoption of Ordinance 112 is compelling. IF the District had
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adopted Ordinance 112 before the filing of the Appeal in this matter, it would have been responsible for
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paying for Plaintiffs attorney fees (as they are now responsible). Had the Court of Appeal NOT
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reversed the trial court, Defendants would have avoided responsibility for those attorney fees. The
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District bet, and lost that the Court of Appeal would have affirmed.
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Under the catalyst theory, a petitioner may be able to recover fees when the case is resolved short
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of a comi decision but the respondent agency or the real party in interest changes its conduct
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"substantially because of, and in the manner sought by, the litigation." Graham, supra at 560. To
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receive fee award plaintiff need not show lawsuit was only cause of defendant's change in policy; it
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need only show lawsuit was substantial contributing factor or significant catalyst motivating
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change. Department of Water Resources Cases (2022) 79 CA5th 556,572. Under the catalyst theory, a
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plaintiff may be a successful party if it obtains the primary relief it had sought in the lawsuit whether
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through a judgment, settlement, or a voluntary change in the defendant's conduct. Id.
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In taking all of the actions complained of in the complaint, Defendants have conceded this case
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because they have done everything demanded by Plaintiffs to this Action. Defendants are trying to turn
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their loss of the entire case into an improper victory. The truth is there is nothing left for Plaintiffs to
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argue - Defendants have taken all actions demanded by Plaintiff. For this reason, the Motion for
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Attorney Fees should be granted.
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REPLY TO COUNTY DEFENDANTS' OPPOSITION TO MOTION FOR FEES
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II. PLAINTIFF IS THE PREVAILING PARTY BECAUSE DEFENDANTS HA VE
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MADE ALL OF THE CHANGES DEMANDED IN THE THIRD AMENDED
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COMPLAINT
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Conducting the required nexus study and adopting a separate fee for Townhomes and
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condominiums are exactly the demands made of Defendants in the operative Third Amended Complaint.
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The demands made in the Third Amended Complaint are that 1) the District either conduct a nexus study
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or hold an election to approve the "fee" that was being illegally collected by the District (Third Amended
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Complaint 12:14-15 and 12:22-23); and 2) that townhomes and condos not be blindly treated the same as
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single-family residences and be treated separately (Third Amended Complaint 12:24). The Third
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Amended Complaint asserted, and nothing in Defendant's filings indicate nothing to the contrary, that
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the fee was illegally collected between 1975 and the adoption of Ordinance 112. (Third Amended
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Complaint 12:18-19.)
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Defendants' Motion for Judgment on the Pleadings conceded that the changes demanded in the
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third Amended Complaint by Plaintiffs have now been made by the District in the middle of this
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litigation. First, the District conceded that they have now conducted the nexus study demanded by
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Plaintiffs. (Motion for Judgment on the Pleadings 7:6-7, 7:9-14, 7:22-23 .) Next, Defendants make clear
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that the conducted study required a different and unique rate structure for townhomes and condominiums
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that distinguish that rate from the rates set for single family residences and for apartments. (Motion of
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Judgment on the Pleadings 7:15-16, Exhibit B to Request for Judicial Notice [Ordinance 112], Section
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501.010 Rates.)
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As will be discussed immediately below, between 1975 and the adoption of Ordinance 112, the
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District illegally collected taxes from the owners of townhomes and condominiums. It was only after this
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action was filed that, for the first time in almost half a century the District conducted the required study
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and adopted the appropriate fee for the owners of townhomes and condominiums. The catalyst to this
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very tardy study and ordinance adoption? The filing of this lawsuit.
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REPLY TO COUNTY DEFENDANTS' OPPOSITION TO MOTION FOR FEES
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III. PROCEDURAL HISTORY AND THE COURT OF APPEAL REVERSAL
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This action was filed on May 6, 2019, containing a single cause of action alleging that the District
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is violating Propositions 13, 62 and 218 by collecting an illegal tax that Defendants improperly describe
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as a "fee." On July 26, 2019, the District filed a Motion to Strike and a Demurrer challenging the
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complaint on multiple grounds including allegations that the Complaint was barred by the statute of
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limitations. The Court granted the Demurrer without prejudice in part finding that the action was barred
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by the statute of limitations.
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On September 5, 2019, Plaintiffs filed a First Amended Complaint against Defendants Napa
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Sanitary District and Napa County (the "County"). The First Amended Complaint consisted of three
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causes of action: 1) against the District for Declaratory and Injunctive Reliefregarding the District's
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violation of Propositions 13, 62, and 218, California Constitution Articles 13A, 13B, and 13C, and
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Government Code Section 53721 ; 2) against the District and the County for Declaratory Reliefregarding
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violations of California Code of Civil Procedure Section 1085 and Government Code Sections 53723 and
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53 728; and 3) a claim for refund of improperly collected taxes. The second cause of action under
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Government Code section 53728 requires Defendants to disgorge all fees collected without a supporting
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nexus study. The District once again filed a Demurrer to the First Amended Complaint again arguing,
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among other things, a violation of the statute of limitations. On February 21, 2020, the Court once again
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granted the Demurrer, based upon, among other things, a determination that the action was barred by the
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statute of limitations. The Court sustained the Demurrer to the first cause of action without prejudice, but
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dismissed the second cause of action WITH prejudice.
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On March 2, 2020, Plaintiffs filed a Second Amended Complaint. The Second Amended
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Complaint contained two causes of action. The first cause of action was against the County and the
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District alleging a violation of numerous laws including Propositions 13, 62 and 218. The second cause
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of action once again sought repayment of fees paid directly by Plaintiffs. Defendants once again
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Demurred to the Second Amended Complaint and the Court once again dismissed Plaintiffs' claims
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without prejudice.
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REPLY TO COUNTY DEFENDANTS' OPPOSITION TO MOTION FOR FEES
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On September 30, 2023, Plaintiffs filed the Third Amended Complaint which contained a single
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cause of action for Declaratory Relief alleging that Defendants were in violation of numerous laws
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including Propositions 13, 62 and 218. Defendants once again filed a Demurrer which was granted by
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the Court, this time with prejudice effectively sending the case to the Court of Appeal.
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Plaintiffs appealed all of the Trial Court's rulings including the dismissal of the Second Cause of
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Action in the First Amended Complaint with prejudice. After full briefing and without argument, the
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Court of Appeal reversed the trial court finding that all of the Trial Court's rationale for granting the
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Demurrer was poorly taken, that no portion of the case was barred by any statute of limitation and that
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Defendants' arguments regarding severance of fees was opposite of the Defendants' position and that the
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Defendants bore the burden ofrisk to its bonds because of the way the District drafted its fee ordinance.
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All of the causes of action previously pied in the first four versions of the Complaint were all
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dismissed based solely on the improper application of the statute of limitations. The appeal challenged
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all of those dismissals of all causes of action. The Court of Appeal determined that the statute of
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limitations was not applicable and not a bar to any of those claims.
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IV. PLAINTIFFS ARE THE PREVAILING PARTY
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California Code of Civil Procedure Section 1032 provides that the Court must determine the
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prevailing party when either party receives anything other than a monetary award. A party is not the
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"losing party" in a case because the case was settled or relief was mooted by the respondent's voluntary
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compliance. Folsom v. Butte County Ass 'n of Gov 'ts (1982) 32 Cal.3d 668, 685.) The key question is the
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impact of the case, not how it is resolved. To determine if a Party is the prevailing party, a Court must
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determine, as a practical matter, whether the plaintiffs' efforts contributed to the outcome and whether
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the resulting change in conditions conferred an actual benefit. Folsom v Butte County Ass'n of'
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Gov'ts (1982) 32 C3d 668, 685; California Attorney Fee Awards §§3.37- 3.79 (3d ed Cal CEB). A party
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is the prevailing party when the court did not render a decision on the merits but the litigation was a
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"catalyst" for action by the agency to provide the primary relief sought in the action. Graham v
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DaimlerChrysler Corp. (2004) 34 C4th 553 , 560; Westside Community for Indep. Living, Inc. v
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Obledo (1983) 33 C3d 348. See also Californians for Responsible Toxics Mgmt. v Kizer (1989) 211
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CA3d 961 , 974.
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REPLY TO COUNTY DEFENDANTS' OPPOSITION TO MOTION FOR FEES
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It is not necessary for a plaintiff to obtain a judgment in its favor to qualify as a successful
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party.(Yucaipa, supra, 238 Cal.App.4th at p. 521.) In Graham. our Supreme Court endorsed the "catalyst
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theory" of attorney fees, under which plaintiffs may be considered successful if their lawsuit caused the
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defendant to voluntarily provide the relief sought. (Graham, supra, 34 Cal.4th at pp. 560-561,
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568 .) Under the catalyst theory, attorney fees may be awarded even when litigation does not result in a
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judicial resolution if the defendant voluntarily changes its behavior substantially because of, and in the
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manner sought by, the litigation. (Id. at p. 560.)
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Under the catalyst theory , a plaintiff may be a successful party if it obtains the primary relief it
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had sought in the lawsuit whether through a judgment, settlement, or a voluntary change in the
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defendant's conduct. Department of Water Resources Cases (2022) 79 CA5th 556, 572. On
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the catalyst theory, see Attorney Fee Awards §§4.11--4.13 . Under this theory, a petitioner in CEQA
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litigation may be able to recover fees when the case is resolved short of a court decision but the
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respondent agency or the real party in interest changes its conduct "substantially because of, and in the
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manner sought by, the litigation." Graham, supra at 560. Under the catalyst theory, a plaintiff may be a
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successful party if it obtains the primary relief it had sought in the lawsuit whether through a judgment,
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settlement, or a voluntary change in the defendant's conduct. Department of Water Resources
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Cases (2022) 79 CA5th 556, 572 (to receive fee award plaintiff need not show lawsuit was only cause
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of defendant's change in policy; it need only show lawsuit was substantial contributing factor or
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significant catalyst motivating change). See also Coalition for a Sustainable Future in Yucaipa v City
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o(Yucaipa (2015) 238 CA4th 513 , 521 (upholding denial of attorney fees on basis that project challenged
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in case had been abandoned for reasons independent of litigation).
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Thus, when a plaintiff seeks fees under a catalyst theory, courts generally must conduct the
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following inquiry: (1) identify the plaintiffs primary litigation objectives, (2) compare the results
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obtained to determine whether the plaintiff in fact achieved those objectives, and, if so, (3) decide
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REPLY TO COUNTY DEFENDANTS' OPPOSITION TO MOTION FOR FEES
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whether the lawsuit was a material factor or contributed in a significant way to those
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results. (Yucaipa, supra, 238 Cal.App.4th at pp. 521-522; Graham, supra, 34 Cal.4th at pp. 566-
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567; Bogar Dulce Bogar v. Community Development Com. of City o(Escondido(2007) 157
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Cal.App.4th 1358, 1366 (69 Cal.Rptr.3d 250) .)
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In the present case, ALL of Plaintiffs litigation objectives were met. Plaintiff sought to compel
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the completion of a nexus study regarding the appropriate billing rate for sewage, and the creation of a
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new rate structure for condominiums. Ordinance 112 did all of that. The only issue remaining is
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whether this lawsuit was a material factor in the change. The only reasonable answer given the
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arguments detailed above is that this Action WAS an impetus for the change.
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Because defendants usually are reluctant to concede that litigation induced them to provide the
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relief sought, " [c]lues to the provocative effects of the plaintiffs' legal efforts are often best gleaned from
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the chronology of events .... " (Posada v. Lamb County ( 5th Cir. 1983) 716 F .2d 1066, 1072; see Skinner,
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supra, 53 Cal.App.5th at p. 947, citing MacDonaldv. Ford Motor Co. (N.D.Cal. 2015) 142 F.Supp.3d
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884, 891.) "When, after litigation is initiated, a defendant has voluntarily provided the relief a plaintiff is
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seeking, the chronology of events may raise an inference that the litigation was the catalyst for the
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relief." (Yucaipa, supra, 238 Cal.App.4th at p. 522, citing Hagar Dulce Hagar v. Community
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Developments Com. o{City o{Escondido, supra, 157 Cal.App.4th at p. 1366.) This shifts to the
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defendant the burden to produce evidence to rebut that inference. (Californians for Responsible Toxics
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Management v. Kizer (1989) 211 Cal.App.3d 961, 968 [259 Cal.Rptr. 599].) Defendants attempt to rebut
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this presumption through the Declaration of Andrew Damron who attempts to TELL the Court the intent
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of the District. The legislative thought process privilege prevents the use of such a declaration - it is
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only the majority of the Board at the time of the voting for the Ordinance that can establish the intent of
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the Board through statements made a the dais - something that did not occur in this case for obvious
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reasons - it wasn't the Board's intent to ignore this case.
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In the present case, this Action was CLEARLY the catalyst for the actions taken by the District.
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As stated in detail above, Plaintiffs' Action sought 1) to compel the District either conduct a nexus study
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for the sewer fees charge or to put the fee/tax on the ballot for approval, and 2) to adopt a fee for
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REPLY TO COUNTY DEFENDANTS' OPPOSITION TO MOTION FOR FEES
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townhomes and condominiums that is accurate and separate and apart from the fee charged for single
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family residences. (Third Amended Complaint, 12:14-15, 12:22-23.) The District had refused to take
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these actions for 44 years before the Action was filed. Two years after the action was filed, the District,
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for the very first time conducted the required nexus study and establishing a separate fee for townhomes
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and condominiums. (Motion for Judgment on the Pleadings, p. 7:6-17.) Following the unprecedented
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study of rates for townhomes and condominiums, the District then satisfied the second demand of
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Plaintiffs by ADOPTING a separate fee for townhomes and condominiums which is lower than the fee
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charged to single-family residences. (Id.) The District, through these actions, conceded that all of the
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allegations in the Third Amended Complaint were true and corrected their illegal actions, for the first
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time in almost half a century BECAUSE OF THIS LITIGATION. For these reasons, the Motion for
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attorney fees should be granted.
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V. PLAINTIFFS MEET ALL OF THE REQUIREMENTS FOR RECOVERY OF
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SECTION 1021.5 ATTORNEY FEES
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Attorney Fees should be granted under Code of Civil Procedure Section 1021.5 if: "(a) a
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significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a
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large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement
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by one public entity against another public entity, are such as to make the award appropriate." In the
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present case, a significant public benefit was found through conducting the required nexus study and the
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new fee structure for condominiums which positively impacts all condominium owners in Napa. This
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was the correction of constitutional errors that had been ongoing at the Napa Sanitary District for almost
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half a century. In addition, Plaintiffs sought no monetary relief through the current operative pleading so
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the financial burden of private enforcement is significant, easily meeting this standard.
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VI. THE FEES SOUGHT ARE REASONABLE
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In what appears to be a disingenuous argument, Defendants argue that Plaintiffs' bills are "too
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high." To establish this, the Declaration of Cathy Carlisle improperly suggests that Plaintiffs' counsel
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charged 11 .2 hours for actions that Ms. Carlisle declares that she only billed .4 hours. Each of the entries
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cited by Ms. Carlisle each have four or five activities per time entry, including the time billed speaking
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REPLY TO COUNTY DEFENDANTS' OPPOSITION TO MOTION FOR FEES
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to Ms. Carlisle. The actual totals billed to each client for the phone calls is almost exactly the same. Ms.
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Carlisle simply "forgot to mention" that there were a number of tasks assigned to the total hours billed
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for that day.
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In addition, Defendants make a generalized argument about the time billed being excessive
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without actually giving any examples or attacking any particular task. This showing fails to meet
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Defendants' burden of proof because there is simply no way to counter "that's just to much" without
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specific examples. The fees sought by Plaintiffs' are reasonable and just as detailed in the Declaration of
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Patrick Mitchel that accompanied the moving papers.
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VII. CONCLUSION
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For the reasons stated above, Plaintiffs respectfully request the Court deny the Motion for
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Judgment on the Pleadings and set further hearings consistent with the current status of this case.
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Dated: March 26, 2024 Law Offices of Geoffrey Willis
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REPLY TO COUNTY DEFENDANTS' OPPOSITION TO MOTION FOR FEES
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PROOF OF SERVICE
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I am employed in the County of Orange, State of California. I am over the age of 18 and not a
3 party to the within action; my business address is The Law Offices of Geoffrey Willis, 9891 Irvine
Center Drive, Irvine, California 92618. My email address is: gwillis@geoffwillislaw.com.
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5 On March 26, 2024, I served the following described as:
REPLY TO COUNTY DEFENDANTS' OPPOSITION TO MOTION FOR ATTORNEY FEES
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7 on the interested parties in this by having a copy sent by electronic mail to the email addresses listed
below:
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Catherine Carlisle, Esq. John David Bakker, Esq.
9 Meyers Nave Meyers Nave
707 Wilshire Boulevard, 24th Floor 1999 Harrison St, 9th Floor
10 Los Angeles, CA 9001 7 Oakland, CA 94612
Tel: (213) 626-2906 Tel: (510) 808-2000
11 Email : ccarlisle@meyersnave.com Email: j bakker@meyersnave.com
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13 [] (BY U.S. MAIL): I am "readily familiar" with the firm's practice of collection and processing
correspondence for mailing. Under that practice it would be deposited with the U.S. postal service on
14 that same day with postage thereon fully in the ordinary course of business. I am aware that on motion of
the party served, service is presumed invalid if postal cancellation date or postage meter date is more
15 than one day after date of deposit for mailing in affidavit.
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[II'] (BY EMAIL): The foregoing document(s) were served via electronic mail to the email address(es)
17 listed above. The transmissions were made without any errors being noted in our office's email program.
18 [ ] (BY OVERNITE EXPRESS AND/OR FEDEX): I caused such envelope to be delivered by
OverNite Express and/or FedEx to the offices of the addressees.
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20 [II'] (STATE) I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
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Executed on March 26, 2024, at Nampa, Idaho.
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REPLY TO COUNTY DEFENDANTS' OPPOSITION TO MOTION FOR FEES
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Geoffrey K. Willis (State Bar No. 126504) Law Offices of Geoffrey Willis 2 Geoff Willis, A Professional Corporation 9891 Irvine Center Drive, Suite 200 3 Irvine, CA 92618 4 Phone: (949) 374-3815 gwillis@geoffwillislaw.com 5 6 Attorneys for Plaintiff 7 8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF NAPA 1O RAJA DEVELOPPMENT CO., INC., a California Case No. 19CV000682 corporation; CASHEL, INC., an Alaska 11 corporation doing business in California as NAP A REPLY TO COUNTY DEFENDANTS' CASHEL; and CARTER RANDALL OPPOSITION TO MOTION FOR ATTORNEY 12 CALLAHAN, and individual; FEES 13 Plaintiffs, 14 Date: April 3, 2024 vs. Time: 8:30 a.m. 15 Dept.: A NAPA SANITARY DISTRICT; and DOES 1-100, 16 Action filed: May 6, 2019 inclusive, Trial date: None Set 17 Defendants. 18 NAPA COUNTY, A Political Subdivision of the 19 State of California, 20 Real Part in Interest 21 22 23 24 25 26 27 28 REPLY TO COUNTY DEFENDANTS' OPPOSITION TO MOTION FOR ATTORNEY FEES 1 2 I. PLAINTIFF IS THE PREVAILING PARTY AND IS ENTITLED TO ITS 3 ATTORNEY FEE 4 This case is now over and Plaintiffs (Raja Development Co., Inc., et al.) are the prevailing party. 5 Defendants have now taken all actions demanded in the Third Amended Complaint establishing that 6 Plaintiffs were the catalyst for these actions making them the prevailing party in the action. According to 7 the facts set forth by Defendants in their Motion for Judgment on the Pleadings, on March 21 , 2021 , in 8 direct response to this action, the Napa Sanitary District adopted Ordinance 112 which took effect on 9 July 1, 2021. Among other things, this Ordinance was based on the nexus study demanded by Plaintiffs 10 in the third Amended Complaint. The Ordinance also set a different and lower rate structure from that 11 charged to single-family residence as also demanded by Plaintiff in the Third Amended Complaint. 12 These two demands were the only two essential demands made by Plaintiffs in the Third Amended 13 Complaint and are concessions by Defendants that Plaintiffs' allegations in the third Amended Complaint 14 were true and accurate and demanded correction. 15 As admitted by the Defendants, Ordinance 112 changed the rate structure for the sewer service 16 charges at issue based upon a rate study conducted in 2020, While the District claims that it 17 "commissions such rate studies to ensure that sewer charges properly align with costs", the District had 18 never conducted a rate study about townhomes or condominiums in the almost 50 years the rate structure 19 had been in place. It was not until the filing in this law suit that Defendants took any steps at all to have 20 the fee charged to townhomes and condominiums adopted in the manner required by law. In its rate 21 study undertaken during and because of this litigation, the District, for the very first time, studied sewer 22 rates for townhomes and condominiums separately from single-family residences. In addition, the fee for 23 townhomes and condominiums had always been illegally set to the same level as the much higher rate 24 charged to single-family detached homes. This was a key demand of the Third Amended Complaint. 25 Following this study, and establishing the claims set forth in this action, the District for the first time ever 26 separated the sewer rates for townhomes and condominiums from the sewer rates for single-family 27 residences. Just as alleged in the Third Amended Complaint in this action, the District found that the 28 impacts of townhomes and condominiums were significantly less than single family residences. In fact, REPLY TO COUNTY DEFENDANTS' OPPOSITION TO MOTION FOR FEES 1 the rate structure established by the District continues to reduce charges to townhomes and 2 condominiums even more over the next 5-10 years - almost as if they didn't want to admit how wrong 3 they were before this action. 4 When Plaintiffs brought this action, it was the catalyst to the actions taken by the District to bring 5 its actions into compliance with the law as described in this action. Without the Plaintiffs' actions, 6 owners oftownhomes and condominiums would still be paying an illegal fee that had never been 7 subjected to the required study and/or adopted by a 2/3 vote of the people. 8 In addition, the timing of the adoption of Ordinance 112 is compelling. IF the District had 9 adopted Ordinance 112 before the filing of the Appeal in this matter, it would have been responsible for 10 paying for Plaintiffs attorney fees (as they are now responsible). Had the Court of Appeal NOT 11 reversed the trial court, Defendants would have avoided responsibility for those attorney fees. The 12 District bet, and lost that the Court of Appeal would have affirmed. 13 Under the catalyst theory, a petitioner may be able to recover fees when the case is resolved short 14 of a comi decision but the respondent agency or the real party in interest changes its conduct 15 "substantially because of, and in the manner sought by, the litigation." Graham, supra at 560. To 16 receive fee award plaintiff need not show lawsuit was only cause of defendant's change in policy; it 17 need only show lawsuit was substantial contributing factor or significant catalyst motivating 18 change. Department of Water Resources Cases (2022) 79 CA5th 556,572. Under the catalyst theory, a 19 plaintiff may be a successful party if it obtains the primary relief it had sought in the lawsuit whether 20 through a judgment, settlement, or a voluntary change in the defendant's conduct. Id. 21 In taking all of the actions complained of in the complaint, Defendants have conceded this case 22 because they have done everything demanded by Plaintiffs to this Action. Defendants are trying to turn 23 their loss of the entire case into an improper victory. The truth is there is nothing left for Plaintiffs to 24 argue - Defendants have taken all actions demanded by Plaintiff. For this reason, the Motion for 25 Attorney Fees should be granted. 26 27 28 2 REPLY TO COUNTY DEFENDANTS' OPPOSITION TO MOTION FOR FEES 1 II. PLAINTIFF IS THE PREVAILING PARTY BECAUSE DEFENDANTS HA VE 2 MADE ALL OF THE CHANGES DEMANDED IN THE THIRD AMENDED 3 COMPLAINT 4 Conducting the required nexus study and adopting a separate fee for Townhomes and 5 condominiums are exactly the demands made of Defendants in the operative Third Amended Complaint. 6 The demands made in the Third Amended Complaint are that 1) the District either conduct a nexus study 7 or hold an election to approve the "fee" that was being illegally collected by the District (Third Amended 8 Complaint 12:14-15 and 12:22-23); and 2) that townhomes and condos not be blindly treated the same as 9 single-family residences and be treated separately (Third Amended Complaint 12:24). The Third 10 Amended Complaint asserted, and nothing in Defendant's filings indicate nothing to the contrary, that 11 the fee was illegally collected between 1975 and the adoption of Ordinance 112. (Third Amended 12 Complaint 12:18-19.) 13 Defendants' Motion for Judgment on the Pleadings conceded that the changes demanded in the 14 third Amended Complaint by Plaintiffs have now been made by the District in the middle of this 15 litigation. First, the District conceded that they have now conducted the nexus study demanded by 16 Plaintiffs. (Motion for Judgment on the Pleadings 7:6-7, 7:9-14, 7:22-23 .) Next, Defendants make clear 17 that the conducted study required a different and unique rate structure for townhomes and condominiums 18 that distinguish that rate from the rates set for single family residences and for apartments. (Motion of 19 Judgment on the Pleadings 7:15-16, Exhibit B to Request for Judicial Notice [Ordinance 112], Section 20 501.010 Rates.) 21 As will be discussed immediately below, between 1975 and the adoption of Ordinance 112, the 22 District illegally collected taxes from the owners of townhomes and condominiums. It was only after this 23 action was filed that, for the first time in almost half a century the District conducted the required study 24 and adopted the appropriate fee for the owners of townhomes and condominiums. The catalyst to this 25 very tardy study and ordinance adoption? The filing of this lawsuit. 26 27 28 3 REPLY TO COUNTY DEFENDANTS' OPPOSITION TO MOTION FOR FEES 1 III. PROCEDURAL HISTORY AND THE COURT OF APPEAL REVERSAL 2 This action was filed on May 6, 2019, containing a single cause of action alleging that the District 3 is violating Propositions 13, 62 and 218 by collecting an illegal tax that Defendants improperly describe 4 as a "fee." On July 26, 2019, the District filed a Motion to Strike and a Demurrer challenging the 5 complaint on multiple grounds including allegations that the Complaint was barred by the statute of 6 limitations. The Court granted the Demurrer without prejudice in part finding that the action was barred 7 by the statute of limitations. 8 On September 5, 2019, Plaintiffs filed a First Amended Complaint against Defendants Napa 9 Sanitary District and Napa County (the "County"). The First Amended Complaint consisted of three 10 causes of action: 1) against the District for Declaratory and Injunctive Reliefregarding the District's 11 violation of Propositions 13, 62, and 218, California Constitution Articles 13A, 13B, and 13C, and 12 Government Code Section 53721 ; 2) against the District and the County for Declaratory Reliefregarding 13 violations of California Code of Civil Procedure Section 1085 and Government Code Sections 53723 and 14 53 728; and 3) a claim for refund of improperly collected taxes. The second cause of action under 15 Government Code section 53728 requires Defendants to disgorge all fees collected without a supporting 16 nexus study. The District once again filed a Demurrer to the First Amended Complaint again arguing, 17 among other things, a violation of the statute of limitations. On February 21, 2020, the Court once again 18 granted the Demurrer, based upon, among other things, a determination that the action was barred by the 19 statute of limitations. The Court sustained the Demurrer to the first cause of action without prejudice, but 20 dismissed the second cause of action WITH prejudice. 21 On March 2, 2020, Plaintiffs filed a Second Amended Complaint. The Second Amended 22 Complaint contained two causes of action. The first cause of action was against the County and the 23 District alleging a violation of numerous laws including Propositions 13, 62 and 218. The second cause 24 of action once again sought repayment of fees paid directly by Plaintiffs. Defendants once again 25 Demurred to the Second Amended Complaint and the Court once again dismissed Plaintiffs' claims 26 without prejudice. 27 28 4 REPLY TO COUNTY DEFENDANTS' OPPOSITION TO MOTION FOR FEES 1 On September 30, 2023, Plaintiffs filed the Third Amended Complaint which contained a single 2 cause of action for Declaratory Relief alleging that Defendants were in violation of numerous laws 3 including Propositions 13, 62 and 218. Defendants once again filed a Demurrer which was granted by 4 the Court, this time with prejudice effectively sending the case to the Court of Appeal. 5 Plaintiffs appealed all of the Trial Court's rulings including the dismissal of the Second Cause of 6 Action in the First Amended Complaint with prejudice. After full briefing and without argument, the 7 Court of Appeal reversed the trial court finding that all of the Trial Court's rationale for granting the 8 Demurrer was poorly taken, that no portion of the case was barred by any statute of limitation and that 9 Defendants' arguments regarding severance of fees was opposite of the Defendants' position and that the 10 Defendants bore the burden ofrisk to its bonds because of the way the District drafted its fee ordinance. 11 All of the causes of action previously pied in the first four versions of the Complaint were all 12 dismissed based solely on the improper application of the statute of limitations. The appeal challenged 13 all of those dismissals of all causes of action. The Court of Appeal determined that the statute of 14 limitations was not applicable and not a bar to any of those claims. 15 IV. PLAINTIFFS ARE THE PREVAILING PARTY 16 California Code of Civil Procedure Section 1032 provides that the Court must determine the 17 prevailing party when either party receives anything other than a monetary award. A party is not the 18 "losing party" in a case because the case was settled or relief was mooted by the respondent's voluntary 19 compliance. Folsom v. Butte County Ass 'n of Gov 'ts (1982) 32 Cal.3d 668, 685.) The key question is the 20 impact of the case, not how it is resolved. To determine if a Party is the prevailing party, a Court must 21 determine, as a practical matter, whether the plaintiffs' efforts contributed to the outcome and whether 22 the resulting change in conditions conferred an actual benefit. Folsom v Butte County Ass'n of' 23 Gov'ts (1982) 32 C3d 668, 685; California Attorney Fee Awards §§3.37- 3.79 (3d ed Cal CEB). A party 24 is the prevailing party when the court did not render a decision on the merits but the litigation was a 25 "catalyst" for action by the agency to provide the primary relief sought in the action. Graham v 26 DaimlerChrysler Corp. (2004) 34 C4th 553 , 560; Westside Community for Indep. Living, Inc. v 27 Obledo (1983) 33 C3d 348. See also Californians for Responsible Toxics Mgmt. v Kizer (1989) 211 28 CA3d 961 , 974. 5 REPLY TO COUNTY DEFENDANTS' OPPOSITION TO MOTION FOR FEES 1 It is not necessary for a plaintiff to obtain a judgment in its favor to qualify as a successful 2 party.(Yucaipa, supra, 238 Cal.App.4th at p. 521.) In Graham. our Supreme Court endorsed the "catalyst 3 theory" of attorney fees, under which plaintiffs may be considered successful if their lawsuit caused the 4 defendant to voluntarily provide the relief sought. (Graham, supra, 34 Cal.4th at pp. 560-561, 5 568 .) Under the catalyst theory, attorney fees may be awarded even when litigation does not result in a 6 judicial resolution if the defendant voluntarily changes its behavior substantially because of, and in the 7 manner sought by, the litigation. (Id. at p. 560.) 8 Under the catalyst theory , a plaintiff may be a successful party if it obtains the primary relief it 9 had sought in the lawsuit whether through a judgment, settlement, or a voluntary change in the 10 defendant's conduct. Department of Water Resources Cases (2022) 79 CA5th 556, 572. On 11 the catalyst theory, see Attorney Fee Awards §§4.11--4.13 . Under this theory, a petitioner in CEQA 12 litigation may be able to recover fees when the case is resolved short of a court decision but the 13 respondent agency or the real party in interest changes its conduct "substantially because of, and in the 14 manner sought by, the litigation." Graham, supra at 560. Under the catalyst theory, a plaintiff may be a 15 successful party if it obtains the primary relief it had sought in the lawsuit whether through a judgment, 16 settlement, or a voluntary change in the defendant's conduct. Department of Water Resources 17 Cases (2022) 79 CA5th 556, 572 (to receive fee award plaintiff need not show lawsuit was only cause 18 of defendant's change in policy; it need only show lawsuit was substantial contributing factor or 19 significant catalyst motivating change). See also Coalition for a Sustainable Future in Yucaipa v City 20 o(Yucaipa (2015) 238 CA4th 513 , 521 (upholding denial of attorney fees on basis that project challenged 21 in case had been abandoned for reasons independent of litigation). 22 Thus, when a plaintiff seeks fees under a catalyst theory, courts generally must conduct the 23 following inquiry: (1) identify the plaintiffs primary litigation objectives, (2) compare the results 24 obtained to determine whether the plaintiff in fact achieved those objectives, and, if so, (3) decide 25 26 27 28 6 REPLY TO COUNTY DEFENDANTS' OPPOSITION TO MOTION FOR FEES 1 whether the lawsuit was a material factor or contributed in a significant way to those 2 results. (Yucaipa, supra, 238 Cal.App.4th at pp. 521-522; Graham, supra, 34 Cal.4th at pp. 566- 3 567; Bogar Dulce Bogar v. Community Development Com. of City o(Escondido(2007) 157 4 Cal.App.4th 1358, 1366 (69 Cal.Rptr.3d 250) .) 5 In the present case, ALL of Plaintiffs litigation objectives were met. Plaintiff sought to compel 6 the completion of a nexus study regarding the appropriate billing rate for sewage, and the creation of a 7 new rate structure for condominiums. Ordinance 112 did all of that. The only issue remaining is 8 whether this lawsuit was a material factor in the change. The only reasonable answer given the 9 arguments detailed above is that this Action WAS an impetus for the change. 10 Because defendants usually are reluctant to concede that litigation induced them to provide the 11 relief sought, " [c]lues to the provocative effects of the plaintiffs' legal efforts are often best gleaned from 12 the chronology of events .... " (Posada v. Lamb County ( 5th Cir. 1983) 716 F .2d 1066, 1072; see Skinner, 13 supra, 53 Cal.App.5th at p. 947, citing MacDonaldv. Ford Motor Co. (N.D.Cal. 2015) 142 F.Supp.3d 14 884, 891.) "When, after litigation is initiated, a defendant has voluntarily provided the relief a plaintiff is 15 seeking, the chronology of events may raise an inference that the litigation was the catalyst for the 16 relief." (Yucaipa, supra, 238 Cal.App.4th at p. 522, citing Hagar Dulce Hagar v. Community 17 Developments Com. o{City o{Escondido, supra, 157 Cal.App.4th at p. 1366.) This shifts to the 18 defendant the burden to produce evidence to rebut that inference. (Californians for Responsible Toxics 19 Management v. Kizer (1989) 211 Cal.App.3d 961, 968 [259 Cal.Rptr. 599].) Defendants attempt to rebut 20 this presumption through the Declaration of Andrew Damron who attempts to TELL the Court the intent 21 of the District. The legislative thought process privilege prevents the use of such a declaration - it is 22 only the majority of the Board at the time of the voting for the Ordinance that can establish the intent of 23 the Board through statements made a the dais - something that did not occur in this case for obvious 24 reasons - it wasn't the Board's intent to ignore this case. 25 In the present case, this Action was CLEARLY the catalyst for the actions taken by the District. 26 As stated in detail above, Plaintiffs' Action sought 1) to compel the District either conduct a nexus study 27 for the sewer fees charge or to put the fee/tax on the ballot for approval, and 2) to adopt a fee for 28 7 REPLY TO COUNTY DEFENDANTS' OPPOSITION TO MOTION FOR FEES 1 townhomes and condominiums that is accurate and separate and apart from the fee charged for single 2 family residences. (Third Amended Complaint, 12:14-15, 12:22-23.) The District had refused to take 3 these actions for 44 years before the Action was filed. Two years after the action was filed, the District, 4 for the very first time conducted the required nexus study and establishing a separate fee for townhomes 5 and condominiums. (Motion for Judgment on the Pleadings, p. 7:6-17.) Following the unprecedented 6 study of rates for townhomes and condominiums, the District then satisfied the second demand of 7 Plaintiffs by ADOPTING a separate fee for townhomes and condominiums which is lower than the fee 8 charged to single-family residences. (Id.) The District, through these actions, conceded that all of the 9 allegations in the Third Amended Complaint were true and corrected their illegal actions, for the first 10 time in almost half a century BECAUSE OF THIS LITIGATION. For these reasons, the Motion for 11 attorney fees should be granted. 12 V. PLAINTIFFS MEET ALL OF THE REQUIREMENTS FOR RECOVERY OF 13 SECTION 1021.5 ATTORNEY FEES 14 Attorney Fees should be granted under Code of Civil Procedure Section 1021.5 if: "(a) a 15 significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a 16 large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement 17 by one public entity against another public entity, are such as to make the award appropriate." In the 18 present case, a significant public benefit was found through conducting the required nexus study and the 19 new fee structure for condominiums which positively impacts all condominium owners in Napa. This 20 was the correction of constitutional errors that had been ongoing at the Napa Sanitary District for almost 21 half a century. In addition, Plaintiffs sought no monetary relief through the current operative pleading so 22 the financial burden of private enforcement is significant, easily meeting this standard. 23 VI. THE FEES SOUGHT ARE REASONABLE 24 In what appears to be a disingenuous argument, Defendants argue that Plaintiffs' bills are "too 25 high." To establish this, the Declaration of Cathy Carlisle improperly suggests that Plaintiffs' counsel 26 charged 11 .2 hours for actions that Ms. Carlisle declares that she only billed .4 hours. Each of the entries 27 cited by Ms. Carlisle each have four or five activities per time entry, including the time billed speaking 28 8 REPLY TO COUNTY DEFENDANTS' OPPOSITION TO MOTION FOR FEES 1 to Ms. Carlisle. The actual totals billed to each client for the phone calls is almost exactly the same. Ms. 2 Carlisle simply "forgot to mention" that there were a number of tasks assigned to the total hours billed 3 for that day. 4 In addition, Defendants make a generalized argument about the time billed being excessive 5 without actually giving any examples or attacking any particular task. This showing fails to meet 6 Defendants' burden of proof because there is simply no way to counter "that's just to much" without 7 specific examples. The fees sought by Plaintiffs' are reasonable and just as detailed in the Declaration of 8 Patrick Mitchel that accompanied the moving papers. 9 VII. CONCLUSION 10 For the reasons stated above, Plaintiffs respectfully request the Court deny the Motion for 11 Judgment on the Pleadings and set further hearings consistent with the current status of this case. 12 13 Dated: March 26, 2024 Law Offices of Geoffrey Willis 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 REPLY TO COUNTY DEFENDANTS' OPPOSITION TO MOTION FOR FEES 1 PROOF OF SERVICE 2 I am employed in the County of Orange, State of California. I am over the age of 18 and not a 3 party to the within action; my business address is The Law Offices of Geoffrey Willis, 9891 Irvine Center Drive, Irvine, California 92618. My email address is: gwillis@geoffwillislaw.com. 4 5 On March 26, 2024, I served the following described as: REPLY TO COUNTY DEFENDANTS' OPPOSITION TO MOTION FOR ATTORNEY FEES 6 7 on the interested parties in this by having a copy sent by electronic mail to the email addresses listed below: 8 Catherine Carlisle, Esq. John David Bakker, Esq. 9 Meyers Nave Meyers Nave 707 Wilshire Boulevard, 24th Floor 1999 Harrison St, 9th Floor 10 Los Angeles, CA 9001 7 Oakland, CA 94612 Tel: (213) 626-2906 Tel: (510) 808-2000 11 Email : ccarlisle@meyersnave.com Email: j bakker@meyersnave.com 12 13 [] (BY U.S. MAIL): I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. postal service on 14 that same day with postage thereon fully in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more 15 than one day after date of deposit for mailing in affidavit. 16 [II'] (BY EMAIL): The foregoing document(s) were served via electronic mail to the email address(es) 17 listed above. The transmissions were made without any errors being noted in our office's email program. 18 [ ] (BY OVERNITE EXPRESS AND/OR FEDEX): I caused such envelope to be delivered by OverNite Express and/or FedEx to the offices of the addressees. 19 20 [II'] (STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 21 Executed on March 26, 2024, at Nampa, Idaho. 22 23 24 25 26 27 28 10 REPLY TO COUNTY DEFENDANTS' OPPOSITION TO MOTION FOR FEES