City of Duarte v. State Water Resources Control Bd. CA4/3 ( 2021 )

Filed 9/22/21 City of Duarte v. State Water Resources Control Bd. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
CITY OF DUARTE,
Plaintiff and Respondent, G059469
v. (Super. Ct. No. 30-2016-00833614)
STATE WATER RESOURCES OPINION
CONTROL BOARD et al.,
Defendants and Appellants.
Appeal from a postjudgment order of the Superior Court of Orange County,
Glenda Sanders, Judge. Reversed. Respondent’s request for judicial notice. Granted.
Appellants’ request for judicial notice. Granted.
Xavier Becerra and Rob Bonta, Attorneys General, Robert W. Byrne,
Assistant Attorney General, Gary E. Tavetian and Daniel M. Lucas, Deputy Attorneys
General, for Defendants and Appellants.
Rutan & Tucker, Richard Montevideo and Travis Van Ligten for Plaintiff
and Respondent.
* * *
INTRODUCTION
A regional water board issued a permit requiring municipal entities within
the region to reduce pollutants in their sewer systems. The state water board upheld this
permit. Two of the municipal entities affected by the permit, the City of Duarte (Duarte)
and the City of Gardena (Gardena), separately challenged the permit. After a bench trial,
the court entered judgment in favor of Duarte and Gardena and issued separate writs of
mandate requiring the water boards to delete certain terms from the permit and to
reconsider it. The trial court then awarded to Duarte, Gardena, and certain other cities
that had participated in the litigation their attorney fees pursuant to Code of Civil
Procedure section 1021.5 (section 1021.5). The water boards filed separate notices of
appeal from the judgments and the postjudgment orders awarding fees.
On the appeal from the judgment, this court reversed the judgment and
directed the trial court to deny the petition for writ of mandate. (City of Duarte v. State
1
Water Resources Control Bd. (2021) 60 Cal.App.5th 258 (Duarte).) The California
Supreme Court denied a petition for review and a request for depublication of the
opinion.
The appeal from the postjudgment order awarding attorney fees to Duarte
and certain other cities is now before us. Despite the reversal of the judgment originally
in its favor, Duarte contends it is the successful party. Normally, the reversal of a
judgment automatically requires reversal of an attendant attorney fees order. Duarte
nevertheless argues it is still the successful party under the catalyst theory of recovery.
For the reasons we explain, the catalyst theory does not support an award of attorney fees
to Duarte. Therefore, we reverse the postjudgment order awarding attorney fees.
1
This court also reversed the judgment in the Gardena case. (City of Gardena v. State
Water Resources Control Board (Jan. 28, 2021, G058540) [nonpub. opn.].)
2
STATEMENT OF FACTS AND PROCEDURAL HISTORY
I.
THE UNDERLYING PETITION
In November 2012, the Regional Water Quality Control Board,
Los Angeles Region (Regional Board) issued a National Pollutant Discharge Elimination
System (NPDES) permit (the Permit) to 86 municipal entities in Los Angeles County (the
Permittees). In 2015, the State Water Resources Control Board (State Board) upheld the
2
Permit with modifications.
The Permit defines the measures the Permittees must take to prevent or
reduce the amount of pollutants discharged via their municipal separate storm sewer
systems (MS4s) and includes numeric effluent limitations. Duarte, the named plaintiff in
this case, owns and operates an MS4 and is one of the Permittees.
Duarte filed a petition for writ of mandate and complaint for injunctive and
declaratory relief, alleging that the Water Control Boards failed to proceed as required by
law and abused their discretion in imposing the numeric effluent limitations in the Permit.
The trial court issued the writ of mandate and entered judgment in favor of Duarte,
ordering the Water Control Boards to “[s]et aside each and every one of the provisions in
the Permit pertaining in any way to any and all Numeric Effluent Limits, and to
reconsider the Permit.”
II.
THE WATER CONTROL BOARDS APPEAL FROM THE JUDGMENT AND WRIT OF MANDATE
The Water Control Boards filed a notice of appeal from the judgment, and
this court reversed the judgment in a published opinion. (Duarte, supra, 60 Cal.App.5th
258.) In that opinion, we framed the issues before us as follows: “(1) Do the numeric
effluent limitations in the Permit require more than is required under federal law?
2
We shall refer to the State Board and the Regional Board together as the Water Control
Boards.
3
(2) If so, did the Water Control Boards sufficiently consider the economic considerations
factor required by Water Code section 13241 before issuing the Permit?” (Id. at p. 269.)
As to the first question, we concluded we did not need to reach the merits
of the issue, and instead we “assume[d] without deciding that the Permit’s requirement of
numeric effluent limitations was more stringent than federal law.” (Duarte, supra,
60 Cal.App.5th at p. 271.) As to the second question, we concluded that, “as a matter of
law, the Water Control Boards sufficiently considered the necessary factors under Water
Code section 13241.” (Id. at p. 272.) Therefore, we reversed the judgment and remanded
the matter to the trial court with directions to deny the petition for writ of mandate and
enter judgment in favor of the Water Control Boards. (Id. at p. 277.)
III.
MOTION FOR ATTORNEY FEES IN THE TRIAL COURT
In October 2019, after the judgment was entered in the trial court but before
this court issued its opinion reversing the judgment, Duarte filed a motion for attorney
fees pursuant to section 1021.5. One month later, the Cities of Arcadia, Azusa, La Habra
Heights, and Claremont collectively filed a separate motion for attorney fees in the
3
Gardena action.
In March 2020, the trial court issued a minute order granting the motions
for attorney fees. The parties filed supplemental briefs, after which the trial court issued
3
The appellate record does not explain why the trial court addressed the request for fees
by these nonparties in connection with Duarte’s case rather than Gardena’s case. The
Water Control Boards’ opposition to the motion and a supplemental declaration by the
attorney for these parties with additional information regarding the specifics of the
claimed attorney fees are included in the appellate record in the Gardena appeal, No.
G059466.)
4
another minute order specifying the amount of fees awarded:
Duarte: $1,423,059
Arcadia: $23,520
Azusa: $32,580
La Habra Heights: $18,780
Claremont: $26,880
The Water Control Boards filed a timely notice of appeal from the order
awarding attorney fees.
The Water Control Boards’ opening brief was filed before this court
reversed the underlying judgment. The opening brief addressed whether, under section
1021.5, Duarte was acting in the public interest, or only in its own economic interest, in
pursuing the action. By the time Duarte filed its respondent’s brief, the judgment had
been reversed; in addition to addressing the Water Control Boards’ argument that it was
not acting in the public interest in challenging the Permit, Duarte argued that the reversal
of the judgment did not affect its entitlement to attorney fees. In their reply brief, the
Water Control Boards addressed the effect of the reversal on the entitlement to attorney
fees.
DISCUSSION
Section 1021.5, the private attorney general statute, “awards attorney fees
to a party whose action has resulted in the enforcement of an important right affecting the
public interest.” (Club Members for an Honest Election v. Sierra Club (2008) 45
Cal.4th 309, 318.) There are four prerequisites for eligibility under section 1021.5:
(1) the moving party’s action results in enforcement of “‘“an important right affecting the
public interest,”’” (2) the action confers a significant pecuniary or nonpecuniary benefit
on the general public or a large class of persons, (3) a private action by the moving party
was necessary to obtain the public benefit, and (4) the financial burden of the private
enforcement action makes it appropriate to award the moving party its attorney fees.
5
(Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1214; Bui v. Nguyen (2014) 230
Cal.App.4th 1357, 1365.) The party moving for an award of attorney fees under section
1021.5 bears the burden of establishing each element of the statute. (Bui v. Nguyen,
supra, at p. 1365.)
I.
REVERSAL OF A JUDGMENT GENERALLY REQUIRES REVERSAL OF AN ATTORNEY FEES AWARD
In general, California law provides that if attorney fees are awarded under
section 1021.5 based on a party’s success in litigation, and that success is negated by a
reversal of the judgment, then the award of attorney fees must also be reversed. “A party
seeking an award of section 1021.5 attorney fees must ‘prevail’ or be ‘successful,’ which
generally involves obtaining a favorable judicial decision, i.e., a judicially sanctioned or
recognized change in the legal relationship of the parties. [Citations.] Fees are not
barred if the case was won on a preliminary issue or if the parties settled before trial.
[Citation.] However, procedural success during the course of the litigation is insufficient
to justify such attorney fees where the ruling is later vacated or reversed on the merits.”
(Marine Forests Society v. California Coastal Com. (2008) 160 Cal.App.4th 867, 877,
italics added.)
Other opinions consistently state and apply this principle: “An order
awarding [attorney] fees [under section 1021.5] ‘falls with a reversal of the judgment on
which it is based.’” (California Grocers Assn. v. Bank of America (1994) 22
Cal.App.4th 205, 220; see Center for Biological Diversity v. County of San Bernardino
(2010) 188 Cal.App.4th 603, 613, fn. 4 [“even when there is no appeal of a postjudgment
order awarding attorney fees to the prevailing party, and the award has become final, the
appellate court’s reversal of the judgment on the merits extinguishes the order on fees”];
Klajic v. Castaic Lake Water Agency (2004) 121 Cal.App.4th 5, 16 [reversal of judgment
with directions to vacate writ of mandate means respondents were unsuccessful, and
reversal of attorney fee award under section 1201.5 is “automatic”]; Ryan v. California
6
Interscholastic Federation-San Diego Section (2001) 94 Cal.App.4th 1048, 1082
[“Because we reverse the judgment to the extent that Ryan prevailed, we must also
reverse the postjudgment order that followed awarding attorney fees and costs to his
counsel under section 1021.5”]; National Parks and Conservation Assn. v. County of
Riverside (2000) 81 Cal.App.4th 234, 238 [“where an appellate court reverses a judgment
ordering issuance of a writ of mandate, ‘[i]t follows’ that the trial court’s section 1021.5
attorney fees award must also be reversed”]; Kimble v. Board of Education (1987) 192
Cal.App.3d 1423, 1431, fn. omitted [“Under . . . section 1021.5, an award of attorney fees
is limited to the successful party”].)
A narrow exception exists where the reversal of the judgment underlying
the award of section 1021.5 attorney fees is a “limited reversal,” in which case the
appellate court should “remand for the trial court to consider anew the propriety of
attorney fees unless we can say with certainty the court would have exercised its
discretion the same way had the successful party not prevailed on the issue on which we
reverse.” (Boatworks, LLC v. City of Alameda (2019) 35 Cal.App.5th 290, 307.) In this
case, the reversal of the judgment with directions to deny the petition for writ of mandate
was not a limited reversal.
Duarte has not cited, and we have not found in our own research, any case
that awards section 1021.5 attorney fees to a party when the judgment in that party’s
favor was unconditionally reversed on appeal. This court’s reversal of the judgment with
directions to deny the petition for writ of mandate and enter judgment for the Water
Control Boards negated Duarte’s initial success in the litigation.
II.
THE CATALYST THEORY OF RECOVERY DOES NOT APPLY IN THIS CASE
In its respondent’s brief, Duarte argues that, notwithstanding the reversal of
the judgment and the writ of mandate, it is still the “successful” party within the meaning
of section 1021.5. Duarte bases this argument on the catalyst theory of recovery, under
7
which “an attorney fee award may be justified even when plaintiff’s legal action does not
result in a favorable final judgment. [Citations.] It is also clear that the procedural
device by which a plaintiff seeks to enforce an important right is not determinative of his
or her entitlement to attorney fees under section 1021.5. [Citation.] Similarly, a
section 1021.5 award is not necessarily barred merely because the plaintiff won the case
on a preliminary issue. [Citation.] In determining whether a plaintiff is a successful
party for purposes of section 1021.5, ‘[the] critical fact is the impact of the action, not the
manner of its resolution.’” (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1290-1291.)
In Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553 (Graham), the
California Supreme Court held that a plaintiff may recover section 1021.5 attorney fees
“even when litigation does not result in a judicial resolution if the defendant changes its
behavior substantially because of, and in the manner sought by, the litigation.” (Graham,
supra, at p. 560.) To be entitled to such recovery (1) the plaintiff must have been a
catalyst to the defendant’s changed behavior, (2) the lawsuit must have “some merit,” and
(3) “the plaintiff must have engaged in a reasonable attempt to settle its dispute with the
defendant prior to litigation.” (Id. at pp. 560-561.)
It is appropriate to take “a broad, pragmatic view” of success for purposes
of application of the catalyst theory. (Graham, supra, 34 Cal.4th at p. 565.) A party
need not obtain a final judgment in its favor in order to be the successful party. (Id. at
pp. 565-566.) No case cited by Duarte, however, would support an award of fees under
section 1021.5 to Duarte as a successful party in this case, where the judgment in its favor
was reversed in its entirety.
Duarte nevertheless contends that it remains a successful party despite the
reversal of the judgment “because it prevailed in acquiring a determination that the
Boards are required to comply with state law when imposing discretionary terms [in MS4
permits].” Further, Duarte contends that, “while the Court of Appeal’s decision in the
main appeal means that the 2012 LA MS4 Permit will stand, Duarte’s lawsuit resulted in
8
a major legal victory in compelling the Boards to comply with State law when adopting
permit[] terms that are not required by federal law, and ‘vindicate[s] the principle upon
which [Duarte] brought this action.’” (Quoting Harbor v. Deukmejian (1987) 43
Cal.3d 1078, 1103.) These assertions are incorrect.
As noted ante, the issues in the prior appeal were whether the Permit
required more than federal law requires in terms of numeric effluent limitations, and
whether the Water Control Boards sufficiently considered the economic considerations
factor of Water Code section 13241, subdivision (d). (Duarte, supra, 60 Cal.App.5th at
p. 269.) Whether the Water Control Boards were required to comply with state law was
not an issue in the case, as the Water Control Boards never contended that they were not
required to do so. The issue was a factual one—whether the requirements of state law (in
this case, the factors of Water Code section 13241) were applicable, and whether the
Water Control Boards complied with them. We determined that the Water Control
Boards had fully complied with Water Code section 13241, and that we did not need to
weigh in on the factual issue of that section’s applicability. (Duarte, supra, at
pp. 271-272.)
In this case, Duarte’s lawsuit did not cause the Water Control Boards to
“change[ their] behavior substantially because of, and in the manner sought by, the
litigation.” (Graham, supra, 34 Cal.4th at p. 560.) Duarte contends that, as a result of its
lawsuit, the Regional Board “has conceded it must now conduct a cost analysis of its
pending Tentative [numeric effluent limitations] Permit terms.” To the contrary, this
court determined as a matter of law that the Water Control Boards had already performed
the required cost analysis under Water Code section 13241, subdivision (d). (Duarte,
supra, 60 Cal.App.5th at p. 274.)
Duarte argues that the tentative MS4 NPDES permit, which was submitted
by the Water Control Boards for public comment in August 2020 (a few months after the
trial court issued the attorney fees award), proves the Water Control Boards altered their
9
4
behavior as a result of Duarte’s lawsuit. We have compared the Permit at issue in
Duarte, supra, 60 Cal.App.5th 258, with the new tentative permit. In the new tentative
permit, the Water Control Boards provided a more extensive analysis of the potential
economic considerations, particularly the potential costs of compliance, than the analysis
in the Permit. Indeed, the section on economic considerations in the Permit was eight
pages in length; in the new tentative permit it is 50 pages in length.
It is significant, however, that in Duarte, supra, 60 Cal.App.5th 258, we
held that the economic considerations included in the Permit were sufficient to comply
4
Duarte asks us to take judicial notice of the following: (A) Notice of Opportunity for
Public Comment on the Tentative Regional Phase I Municipal Separate Storm Sewer
System (MS4) Permit, August 24, 2020; (B) excerpts from TENTATIVE Regional Phase
I MS4 NPDES Permit, Order No. , NPDES Permit No. CAS004004,
Waste Discharge Requirements and National Pollutant Discharge Elimination System
(NPDES) Permit for Municipal Separate Storm Sewer System (MS4) Discharges within
the Coastal Watersheds of Los Angeles and Ventura Counties; (C) Appellants’ Opening
Brief, appeal No. G058539, filed May 14, 2020; (D) Appellants’ Reply Brief, appeal No.
G058539, filed July 2, 2020; (E) this court’s opinion in appeal No. G058539, as modified
January 28, 2021; (F) Duarte’s Request for Rehearing in appeal No. G058539, filed
February 12, 2021; and (G) California Supreme Court’s Order Denying Petition for
Review, Supreme Court case No. S267477, April 28, 2021.
The Water Control Boards ask us to take judicial notice of the following: (A) the
unpublished opinion in City of Arcadia v. State Water Resources Control Bd. (Dec. 14,
2010, G042088); (B) Duarte’s September 8, 2020 Initial Comments on Draft Regional
Phase 1 MS4 Permit to the Regional Water Quality Control Board, Los Angeles Region;
and (C) Duarte’s December 4, 2020 Comments on Tentative MS4 Permit to the Regional
Water Quality Control Board, Los Angeles Region. Duarte filed no opposition to the
Water Control Boards’ request for judicial notice.
Duarte’s exhibits C through G are documents filed in this court or the California
Supreme Court in appeal No. G058539/S267477, the appeal from the judgment in this
case, and are judicially noticeable. (Evid. Code, §§ 451, subd. (a), 452, subd. (d), & 459,
subd. (a).) The Water Control Boards’ exhibit A is a court record, and the proper subject
of judicial notice. (Evid. Code, § 452, subd. (d)(1); Gilbert v. Master Washer &
Stamping Co. (2001) 87 Cal.App.4th 212, 217-218, fn. 14.).
Although the Water Control Boards object, we will take judicial notice of Duarte’s
exhibit B because it is relevant to the analysis and application of the catalyst theory.
(Evid. Code, §§ 452, subds. (c), (h), 459, subd. (a).) Likewise, we take judicial notice of
Duarte’s exhibit A and the Water Control Boards’ exhibits B and C. (Ibid.)
10
with Water Code section 13241 as a matter of law. The Water Control Boards did not
violate Water Code section 13241 in the first instance; the litigation did not compel their
compliance with the law, no matter how much more in depth the economic considerations
section might be in the new tentative permit. Quite simply, the Permit was lawful as is.
The new tentative permit is arguably more so, but that does not justify an award of
attorney fees based on the catalyst theory. Indeed, Duarte does not concede the new
tentative permit is itself lawful.
None of the cases cited by Duarte supports a different conclusion. In
Graham, supra, 34 Cal.4th 553, the plaintiff truck owners sued the truck manufacturer
based on false statements made regarding the truck’s towing capacity, seeking a
repurchase remedy. Before any judgment was entered, the manufacturer offered to
repurchase the trucks. The Supreme Court concluded the plaintiffs had succeeded, but
remanded to allow the trial court to consider the other prongs of the catalyst theory test.
(Id. at p. 577.)
In Maria P. v. Riles, supra, 43 Cal.3d at page 1286, the plaintiffs obtained a
preliminary injunction against enforcement of a statute. The statute was later essentially
repealed, and the lawsuit was dismissed for failure to prosecute under Code of Civil
Procedure section 583, subdivision (b). (Maria P. v. Riles, supra, at pp. 1286-1288.)
In Harbor v. Deukmejian, supra, 43 Cal.3d at page 1103, the petitioners
were entitled to attorney fees even though the named plaintiffs did not personally benefit
because “the impact of [the Supreme Court’s] decision is to vindicate the principle upon
which they brought this action, i.e., that the Governor’s power to veto legislation cannot
be exercised to invalidate part of a bill which is not part of an appropriation bill,” and
because the Supreme Court’s “decision will result in enforcement of an important right
affecting the public interest, conferring a ‘significant benefit’ on the general public in
clarifying the extent of the Governor’s veto power and emphasizing the inviolability by
the Legislature of the one-subject rule.”
11
In Center for Biological Diversity v. California Fish & Game Com. (2011)
195 Cal.App.4th 128, the plaintiff obtained a writ of mandamus requiring the public
agency to reconsider its action. The agency then adopted new findings reaffirming its
original decision. (Id. at pp. 133-134.) The Court of Appeal denied attorney fees to the
plaintiff under section 1021.5 because the public interest was not enforced in a manner
resulting in a “‘significant benefit.’” (Center for Biological Diversity v. California Fish
& Game Com., supra, at p. 139.)
In La Mirada Avenue Neighborhood Assn. of Hollywood v. City of Los
Angeles (2018) 22 Cal.App.5th 1149, the plaintiff’s challenge to six of eight zoning law
variances was successful. The city later amended the neighborhood area plan, and there
was no final determination of the validity of the variances under the new plan. (Id. at p.
1154.) The Court of Appeal nevertheless awarded attorney fees to the plaintiff under
section 1021.5 because “success” under that statute does not require that “the successful
party put the entire dispute to rest for once and all.” (La Mirada Avenue Neighborhood
Assn. of Hollywood v. City of Los Angeles, supra, at pp. 1159-1160.) Attorney fees can
be awarded for “successes conferring a significant benefit before the matter is finally
litigated.” (Ibid.)
In Folsom v. Butte County Assn. of Governments (1982) 32 Cal.3d 668,
686-687, the parties entered into a settlement that required the government agencies to
substantially perform what the plaintiffs had sought through litigation.
None of these cases involved the reversal of a judgment. In all of them, the
party recovering attorney fees under the catalyst theory obtained a successful resolution
of their claims.
The catalyst theory was developed to allow the trial courts to award
attorney fees to plaintiffs who would otherwise be entitled to fees under section 1021.5
but who obtained their litigation goals without proceeding to a final judgment. The
12
catalyst theory does not apply to Duarte, which obtained a judgment in its favor, only to
have that judgment reversed on appeal.
In light of our holding, we need not address the additional issues raised by
the parties, including whether Duarte was acting in its own economic interest in pursuing
the litigation, whether Duarte’s financial interest to pursue litigation precludes an award
under section 1021.5, whether the Water Control Boards waived their ability to challenge
the total amount of the fees awarded by the trial court, and whether Duarte engaged in a
reasonable attempt to settle the dispute before initiating the litigation, as required under
the catalyst theory.
DISPOSITION
The postjudgment order awarding attorney fees is reversed. Appellant to
recover costs on appeal.
FYBEL, J.
WE CONCUR:
O’LEARY, P. J.
ZELON, J.*
*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
13