Keen v. City of Manhattan Beach CA2/8

Filed 8/15/23 Keen v. City of Manhattan Beach CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

DARBY T. KEEN, as Trustee of B314744 The Darby T. Keen Living Trust, Los Angeles County Plaintiff and Appellant, Super. Ct. No. 19STCP02984

v.

CITY OF MANHATTAN BEACH, et al.,

Defendants and Respondents.

APPEAL from an order of the Superior Court of Los Angeles County, Mitchell L. Beckloff, Judge. Affirmed. Angel Law and Frank P. Angel for Plaintiff and Appellant. Richards, Watson & Gershon, Quinn M. Barrow, Ginetta L. Giovinco, and Sarah E. Gerst for Defendants and Respondents. ____________________ Darby Keen sued the City of Manhattan Beach to enjoin it from preventing him from renting his house in the City on a

short-term basis. The rise of online services like Airbnb made this short-term rental issue acute for the City. Keen won in the trial court and on appeal. (Keen v. City of Manhattan Beach (2022) 77 Cal.App.5th 142, 144-151.) On remand, Keen sought an attorney fee award under section 1021.5 of the Code of Civil Procedure. This statute allows attorney fees generally only if the private incentive to sue was too small to motivate the litigation. In other words, if the expected private gain from the suit outweighs its private costs, there is usually no warrant for a public interest fee award. Fee awards under those circumstances can be an abuse of discretion. (See, e.g., Millview County Water Dist. v. State Water Resources Control Bd. (2016) 4 Cal.App.5th 759, 767-773.) Here that private incentive was large enough, held the trial court in a careful written analysis. The court awarded no fees. We affirm. I The trial court found Keen could expect to net about $90,000 from his lawsuit, which sufficed to motivate him without the need for an attorney fee award. The court used a logical and detailed method to calculate this $90,000 benefit. The court estimated Keen’s annual net income from renting his house would be about $121,000 a year. The court found the litigation would yield this annual benefit for five years, thus creating a total benefit for Keen of at least $605,000 (which is the product of five times $121,000). The court estimated Keen’s probability of success at 65 percent, thus