Boppana v. City of Los Angeles CA2/7 ( 2021 )

Filed 3/12/21 Boppana v. City of Los Angeles CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
RAO BOPPANA et al., B304823
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BS159371)
v.
CITY OF LOS ANGELES,
Defendant and Respondent,
ROBERT NOLAN,
Real Party in Interest and
Respondent.
APPEAL from a post-judgment order of the Superior Court
of Los Angeles County, James C. Chalfant, Judge. Affirmed.
Craig A. Sherman, for Plaintiffs and Appellants.
Michael N. Feuer, City Attorney, Kathleen A. Kenealy,
Chief Deputy City Attorney, Scott Marcus, Senior Assistant City
Attorney, and Gabriel S. Dermer, Assistant City Attorney, for
Defendant and Respondent City of Los Angeles.
Ervin Cohen & Jessup, Elizabeth M. Thompson and
Kimberly D. Lewis, for Real Party in Interest and Respondent.
_______________________________
INTRODUCTION
Rao and Rita Boppana and Robert Nolan are neighbors.
They have been litigating with each other in a civil action for
years. When the Boppanas learned Nolan had obtained a
construction permit for improvements on and around his
property, they filed this mandamus action to compel the City of
Los Angeles to revoke the permit. The Boppanas ultimately
prevailed in their mandamus action, and the City revoked
Nolan’s permit. (See Boppana v. City of Los Angeles (Mar. 19,
2019, B283454) [nonpub. opn.] (Boppana I).)
The Boppanas filed a motion for attorneys’ fees under
Code of Civil Procedure section 1021.5,1 arguing they acted as
private attorneys general and enforced “an important public
issue affecting and benefitting the citizens and residents of the
entire city of Los Angeles.” The superior court denied the
motion, and the Boppanas appealed. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Boppanas and Nolan Build Walls and Fences,
Then Sue Each Other
The Boppanas and Nolan live next to each other in Playa
del Rey, a residential neighborhood in Los Angeles. A 10-foot-
wide public right-of-way, known as Veragua Walk, lies between
1 Undesignated statutory references are to the Code of Civil
Procedure.
2
the two properties. At some point after purchasing their
property in 1997, the Boppanas built a wall that, according to
Nolan, “encroach[ed] on Nolan’s portion of Veragua Walk.”
In 2014 Nolan sued the Boppanas to quiet title to what he
claimed was his portion of Veragua Walk. Nolan sought a
judgment requiring the Boppanas to remove the portion of their
wall Nolan claimed was on his half of Veragua Walk, enjoining
the Boppanas from surveilling Nolan and his family, and
prohibiting the Boppanas from planting trees on Veragua Walk
that, over time, would block Nolan’s “incredible view.”
The Boppanas filed a cross-complaint against Nolan,
alleging he illegally built fences, walls, gates, and other
structures along Veragua Walk and the front yard of his
property. The Boppanas claimed Nolan’s front yard structures
extended “‘beyond [Nolan’s] property line’” into the street (a
public right-of-way) adjoining his property. (Boppana I, supra,
B283454.) The Boppanas alleged that Nolan constructed and
maintained “illegal structures . . . for which he has no legal
right to use or possess” and that Nolan’s front yard structures
“protrude into the public street and right of way in a location
and height not permitted as a matter of law.”2 The Boppanas
asserted causes of action for private and public nuisance,
negligence, and negligence per se, as well as for trespass, based
on the allegation Nolan cut and poisoned the Boppanas’ bamboo,
and invasion of privacy, based on the allegation Nolan filmed and
2 The Boppanas also alleged Nolan built illegal “block walls”
along the western side of his property, constructed a “recreation
building with a roof-top observation deck,” and increased the
elevation of the side and rear yards “in association with his
building of walls and structures.”
3
conducted surveillance of the Boppanas. The Boppanas sought
compensatory and punitive damages.
B. The City Issues Nolan a Revocable Permit, and the
Boppanas Obtain a Writ of Mandate Compelling
the City To Revoke It
Through discovery in their civil action with Nolan, the
Boppanas learned in 2015 that Nolan had applied for, and the
City (through the Bureau of Engineering) had issued, a
revocable permit (known as an R-Permit) under Los Angeles
Municipal Code section 62.118.2 for the fence, gate, and wall
Nolan built along his front yard and the public right-of-way.
(Boppana I, supra, B283454.) Rao Boppana “was extremely
surprised to hear that [the] City could and would grant
development permits for structures and developments that
[were] not allowed or authorized under city codes, development
ordinances, and [their] properties’ adopted specific plan.”
On December 1, 2015 the Boppanas filed a petition for
writ of mandate (this action) to compel the City to revoke
Nolan’s permit, arguing the City, in reviewing Nolan’s permit
application, did not comply with applicable provisions of the Los
Angeles Building Code, the Comprehensive Zoning Plan of the
City of Los Angeles, and the Coastal Bluffs Specific Plan. Nolan
and the City argued that these provisions did not apply to
structures built in a public right-of-way and that the City did
not have to determine whether Nolan’s application and
proposed structures complied with those laws. (Boppana I,
supra, B283454.)
Shortly after filing their petition for writ of mandate, the
Boppanas filed a notice of related case stating that the civil
action and the mandamus action involved the same parties,
were based on the same or similar claims, and arose “from the
4
same or substantially identical transactions, incidents, or
events requiring the determination of the same or substantially
identical questions of law or fact.” The Boppanas also filed, and
the trial court in the civil action granted, an ex parte
application to stay the civil action “pending resolution” of the
mandamus action. The Boppanas argued in their ex parte
application: “Adjudication of the issues in the writ . . .
proceeding could resolve and/or cause one or more legal and
factual issues in this case to be moot.”
In 2017 the superior court denied the Boppanas’ petition
for writ of mandate, and the Boppanas appealed. On March 19,
2019 we reversed the judgment and held the superior court
should have granted the Boppanas’ petition. We concluded Los
Angeles Municipal Code section 62.118.2 required the City to
review a permit application “for compliance with City land use
laws,” to submit the application “for review by other city
agencies,” and to direct the applicant “to obtain any other
necessary approvals or permits from other agencies.” Because
the City failed to “consider the applicability of the Building
Code, the Zoning Code, and the Specific Plan” before issuing
Nolan an R-Permit for his front yard structures, we directed the
superior court to issue a writ of mandate “compelling the [City]
to revoke the permit.” (Boppana I, supra, B283454.)
On June 25, 2019 the Boppanas filed a status conference
report in the civil action, asking the trial court to vacate the
stay (which had been in effect for three and a half years) and to
set the matter for trial. Referring to the mandamus action and
our opinion in Boppana I, the Boppanas asserted: “This related
case involves Boppana’s now successfully challenge[d] and
overturned decision of the City of Los Angeles’ . . . improper
granting of a development and use permit (via a Revocable
Permit) that purportedly allowed . . . Nolan to construct and
5
maintain the subject front and side yard developments that are
not allowed or permitted under the City’s controlling zoning
codes or the adopted Coastal Bluffs Specific Plan. [¶] Boppana
contends that the illegality and unpermitted construction and
nature of Nolan’s developments, that have caused the subject
nuisance and damages to Boppana, have been substantially
admitted and substantially proven such that this matter can
now be tried and adjudicated to determine damages and
remedies.”
C. The Boppanas File a Motion for Attorneys’ Fees
Under Section 1021.5
On November 19, 2019 the Boppanas filed a motion under
section 1021.5 seeking to recover the attorneys’ fees they
incurred in the mandamus action. Rao Boppana stated that he
incurred $88,500 in attorneys’ fees, which he said was
calculated based on his attorney’s discounted hourly rate.
Counsel for the Boppanas stated he agreed to reduce his hourly
rate based on the “strengths” of the Boppanas’ claims and the
“public-interest nature” of the case. The Boppanas contended
that the mandamus lawsuit enforced “an important right
affecting the public interest,” that a “significant benefit has
been conferred on the general public or a large class of persons,”
and that “the necessity and financial burden of private
enforcement make an award of fees appropriate.”
The superior court in the mandamus action issued a
tentative ruling denying the Boppanas’ motion for attorneys’
fees, concluding that the Boppanas had “not identified an
important right affecting the public interest,” that they did not
confer a significant benefit on a large class of persons, and that
their financial benefit “far exceed[ed] the $88,500 in attorneys’
fees that [they] incurred in this lawsuit.” At the hearing on the
6
motion, counsel for the Boppanas argued the engineer who
approved Nolan’s R-Permit testified he issued “thousands” of R-
Permits without considering the zoning laws and general plans
of the area. The court stated that, “in every lawsuit against the
City where the petitioner wins,” the “City [is] being compelled
to follow the law,” but that “there has got to be more than that
to get attorneys’ fees.” Counsel for the City argued that “this
victory is really a neighbor dispute” and that there was “no
evidence before the court” of how many R-Permits the City
would issue in the future.
Turning to the Boppanas’ financial burden, counsel for the
Boppanas initially argued the court’s tentative ruling
erroneously looked at the “potential prospective outcome” of the
civil action. But after further argument, counsel conceded the
court could “look to what [the Boppanas are] asking for in the
[civil] case.” Counsel for the Boppanas emphasized, however,
that the court should “deduct . . . other claims that are
unrelated to this litigation” and calculate that deduction based
on “the likelihood of prevailing on those claims.” Counsel for
Nolan argued that the case law focused on the parties’
“incentives” and “what they reasonably believed might occur if
they prevailed and how that guided their decision-making
process.”
The court found that the Boppanas subjectively believed
they would prevail in their cross-complaint against Nolan and
that this court’s ruling in Boppana I helped the Boppanas
because they could argue in the civil action that issue
preclusion applied to any issues relating to “the R-Permit’s
legality.” The court stated that the two cases “are really
linked.” When counsel for the Boppanas responded that the
cases were only related “by a small aspect,” the court asked
counsel to “put a number on it.” When counsel for the
7
Boppanas responded, “$100,000,” the court stated, “Even then,
$100,000, but you only spent $88,500 here.” The court denied
the Boppanas’ motion and adopted its tentative decision as the
ruling of the court. The Boppanas timely appealed.
DISCUSSION
A. Applicable Law and Standard of Review
Section 1021.5 is an exception to the general rule that
“‘parties in litigation pay their own attorney’s fees.’” (Friends of
Spring Street v. Nevada City (2019) 33 Cal.App.5th 1092, 1107;
see La Mirada Avenue Neighborhood Assn. of Hollywood v. City
of Los Angeles (2018) 22 Cal.App.5th 1149, 1155.) It provides in
pertinent part: “Upon motion, a court may award attorneys’
fees to a successful party against one or more opposing parties
in any action which has resulted in the enforcement of an
important right affecting the public interest if: (a) a significant
benefit, whether pecuniary or nonpecuniary, has been conferred
on the general public or a large class of persons, (b) the
necessity and financial burden of private enforcement, or of
enforcement by one public entity against another public entity,
are such as to make the award appropriate, and (c) such fees
should not in the interest of justice be paid out of the recovery,
if any.”3 (See Conservatorship of Whitley (2010) 50 Cal.4th
1206, 1214 & fn. 2 (Whitley); Sandlin v. McLaughlin (2020)
50 Cal.App.5th 805, 827-828.)
3 “The third factor [section 1021.5, subdivision (c),] ‘does not
apply where, as here, a plaintiff’s action produces no monetary
recovery.’” (Carlsbad Police Officers Assn. v. City of Carlsbad
(2020) 49 Cal.App.5th 135, 145.)
8
“‘[T]he Legislature adopted section 1021.5 as a
codification of the “private attorney general” attorney fee
doctrine that had been developed in numerous prior judicial
decisions. . . . [T]he fundamental objective of the private
attorney general doctrine of attorney fees is “‘to encourage suits
effectuating a strong [public] policy by awarding substantial
attorney’s fees . . . to those who successfully bring such suits
and thereby bring about benefits to a broad class of citizens.’”
[Citation.] The doctrine rests upon the recognition that
privately initiated lawsuits are often essential to the
effectuation of the fundamental public policies embodied in
constitutional or statutory provisions, and that, without some
mechanism authorizing the award of attorney fees, private
actions to enforce such important public policies will as a
practical matter frequently be infeasible.’” (Whitley, supra,50 Cal.4th at pp. 1217-1218; accord, Department of Fair
Employment & Housing v. Cathy’s Creations, Inc. (2020)
54 Cal.App.5th 404, 411-412; see Center for Biological Diversity
v. County of San Bernardino (2010) 188 Cal.App.4th 603,
611-612 [“‘section 1021.5 acts as an incentive for the pursuit of
public interest-related litigation that might otherwise have
been too costly to bring’”].)
“[E]ligibility for section 1021.5 attorney fees is established
when ‘(1) plaintiffs’ action “has resulted in the enforcement of
an important right affecting the public interest,” (2) “a
significant benefit, whether pecuniary or nonpecuniary has
been conferred on the general public or a large class of persons”
and (3) “the necessity and financial burden of private
enforcement are such as to make the award appropriate.”’”
(Whitley, supra, 50 Cal.4th at p. 1214; accord, Sandlin v.
McLaughlin, supra, 50 Cal.App.5th at p. 828.) Because
“‘section 1021.5 states the criteria in the conjunctive, each of
9
the statutory criteria must be met to justify a fee award.’”
(People v. Investco Mgmt. & Dev. LLC (2018) 22 Cal.App.5th
443, 456 (Investco); see Millview County Water Dist. v. State
Water Resources Control Bd. (2016) 4 Cal.App.5th 759, 769
(Millview) [“The burden is on the party requesting section
1021.5 fees to demonstrate all elements of the statute, including
that the litigation costs transcend his or her personal
interest.”]; Summit Media LLC v. City of Los Angeles (2015)
240 Cal.App.4th 171, 187, 193-194 (Summit Media) [affirming
an order denying attorneys’ fees under section 1021.5 because,
although the plaintiff satisfied two of the prerequisites in
section 1021.5, the plaintiff did not prove the third].)
“Accordingly, we may uphold the trial court’s order denying the
attorney fees motion if we determine any one of these elements
is missing.” (Children & Families Com. of Fresno County v.
Brown (2014) 228 Cal.App.4th 45, 55 (Children & Families).)
We review a ruling on a motion for attorneys’ fees under
section 1021.5 for abuse of discretion. (Whitley, supra,50 Cal.4th at p. 1213.) “Our review of the trial court’s denial of
private attorney general fees is deferential.” (Lafferty v. Wells
Fargo Bank, N.A. (2018) 25 Cal.App.5th 398, 420.) “‘The trial
court’s judgment on whether a plaintiff has proved each of the
prerequisites for an award of attorney fees under section 1021.5
“will not be disturbed unless the appellate court is convinced
that it is clearly wrong and constitutes an abuse of discretion.”’”
(Millview, supra, 4 Cal.App.5th at p. 769.)
B. The Trial Court Did Not Abuse Its Discretion in
Denying the Boppanas’ Motion for Attorneys’ Fees
Under Section 1021.5
The Boppanas argue the superior court erred in ruling
they failed to meet their burden on all three requirements for
10
an award of attorneys’ fees under section 1021.5: enforcing an
important right, conferring a significant benefit on a large class
of persons, and necessarily incurring a financial burden that
makes an award appropriate. We question (but need not
resolve) whether the Boppanas enforced an important right
affecting the public interest and whether their mandamus
action conferred a significant benefit on a large class of persons.
Both this action and the civil action are, at root, part of a long-
simmering private dispute between litigious neighbors over
walls, fences, encroachments, and views. But because the
Boppanas failed to meet the third requirement of section
1021.5, showing that the financial burden of private
enforcement made the award appropriate, we can conclude the
superior court did not abuse its discretion in ruling the
Boppanas were not entitled to fees under section 1021.5.
1. Applicable Law
“[T]he necessity and financial burden requirement ‘“really
examines two issues: whether private enforcement was
necessary and whether the financial burden of private
enforcement warrants subsidizing the successful party’s
attorneys.”’ [Citation.] The ‘necessity’ of private enforcement
‘“‘“looks to the adequacy of public enforcement and seeks
economic equalization of representation in cases where private
enforcement is necessary.”’ [Citations.]”’ [Citation.] . . . [¶]
The second prong of the inquiry addresses the ‘financial burden
of private enforcement.’ In determining the financial burden on
litigants, courts have quite logically focused not only on the
costs of the litigation but also any offsetting financial benefits
that the litigation yields or reasonably could have been expected
to yield. ‘“An award on the ‘private attorney general’ theory is
appropriate when the cost of the claimant’s legal victory
11
transcends his personal interest, that is, when the necessity for
pursuing the lawsuit placed a burden on the plaintiff ‘out of
proportion to his individual stake in the matter.’ [Citation.]”’
[Citation.] ‘This requirement focuses on the financial burdens
and incentives involved in bringing the lawsuit.’” (Whitley,
supra, 50 Cal.4th at pp. 1214-1215; accord Sweetwater Union
High School Dist. v. Julian Union Elementary School Dist.
(2019) 36 Cal.App.5th 970, 991-992 (Sweetwater).)
“[I]n assessing the financial burdens and benefits . . . we
are evaluating incentives rather than outcomes. ‘“[W]e do not
look at the plaintiff’s actual recovery after trial, but instead we
consider ‘the estimated value of the case at the time the vital
litigation decisions were being made.’”’” (Whitley, supra,50 Cal.4th at p. 1220; see Children & Families, supra,
228 Cal.App.4th at p. 62.) “A party seeking fees under section
1021.5 has the burden of establishing its litigation costs
transcend its personal interests.” (Children & Families, at
p. 55.)
2. The Boppanas’ Financial Burden Did Not
Transcend Their Personal Interests
The City and Nolan do not argue the Boppanas’
enforcement of Los Angeles Municipal Code section 62.118.2
was not necessary. The City, which was responsible for
reviewing applications for permits to build on a public right-of-
way, did not review Nolan’s permit application in compliance
with Los Angeles Municipal Code section 62.118.2. Therefore,
the Boppanas had to enforce that provision of the municipal
code in the mandamus action. (See Whitley, supra, 50 Cal.4th
at p. 1215 [“‘[i]nasmuch as the present action proceeded against
the only governmental agencies that bear responsibility for the
subdivision approval process, the necessity of private, as
12
compared to public, enforcement becomes clear’”]; Bui v. Nguyen
(2014) 230 Cal.App.4th 1357, 1366-1367 [same].) But the City
and Nolan do dispute that the Boppanas’ financial burden
outweighed their financial stake in the case. For their part, the
Boppanas argue the superior court “misapplied the relevant and
binding case law and erred in estimating [their] financial gain”
from their successful mandamus action.
In explaining how to determine the financial burden the
litigation placed on the party seeking attorneys’ fees under
section 1021.5, the Supreme Court in Whitley, supra, 50 Cal.4th
at page 1215, cited with approval the “method for weighing
costs and benefits” described in Los Angeles Police Protective
League v. City of Los Angeles (1986) 188 Cal.App.3d 1, 9-10.
The Supreme Court held: “‘The trial court must first fix—or at
least estimate—the monetary value of the benefits obtained by
the successful litigants themselves. . . . Once the court is able
to put some kind of number on the gains actually attained it
must discount these total benefits by some estimate of the
probability of success at the time the vital litigation decisions
were made which eventually produced the successful
outcome. . . . [¶] “After approximating the estimated value of
the case . . . , the court must then turn to the costs of the
litigation . . . , which may have been required to bring the case
to fruition. . . . [¶] The final step is to place the estimated
value of the case beside the actual cost and make the value
judgment whether it is desirable to offer the bounty of a court-
awarded fee in order to encourage litigation of the sort involved
in this case.’”” (Whitley, at pp. 1215-1216; accord, City of
Oakland v. Oakland Police & Fire Retirement System (2018)
29 Cal.App.5th 688, 699-700 (City of Oakland).) “[T]he absence
of a monetary award, or of precise amounts attached to financial
incentives, does not prevent a court from determining whether
13
the plaintiff’s financial burden in pursuing the lawsuit is ‘“‘out of
proportion to his individual stake in the matter.’”’” (Summit
Media, supra, 240 Cal.App.4th at p. 193.)
The superior court did not abuse its discretion in ruling
the Boppanas failed to show the financial burden of litigating
the mandamus action “placed a burden on them ‘out of
proportion to [their] individual stake in the matter.’” Following
the method for estimating costs and benefits approved in
Whitley, supra, 50 Cal.4th at page 1215, the superior court
started by considering the Boppanas’ cross-complaint against
Nolan in the civil action. In that cross-complaint, the Boppanas
alleged that the “illegal” and “unpermitted” structures, which
included those Nolan built to enclose his front yard, caused
them $400,000 in damages. The superior court fixed the
Boppanas’ expected financial recovery at a minimum of
$400,000, and based on the discount factor proposed by counsel
for the Boppanas at the hearing, reduced the $400,000 recovery
by 75 percent to $100,000. After comparing the adjusted
amount of expected compensatory damages to the $88,500 in
attorneys’ fees the Boppanas incurred, the court concluded the
costs of the mandamus litigation did not transcend the
Boppanas’ financial incentive. In assessing the Boppanas’
financial incentive to challenge Nolan’s R-Permit, the superior
court reasonably determined the Boppanas’ victory in this case,
which established the R-Permit’s “illegality,” would “aid them
in obtaining compensatory and punitive damages” in the civil
action.
14
The Boppanas alleged in their cross-complaint that
Nolan’s construction was illegal or unpermitted.4 Establishing
that fact would inevitably help the Boppanas prove their
nuisance and negligence causes of action in the civil action
against Nolan. (See Evid. Code, § 669, subd. (a) [“[t]he failure
of a person to exercise due care is presumed” if he or she
“violated a statute, ordinance, or regulation of a public entity”];
Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939-940 [“a private
person who suffers identifiable harm by reason of a violation of
a municipal zoning law may sue the violator for compensatory
damages”]; Vollaro v. Lispi (2014) 224 Cal.App.4th 93, 102, fn. 7
[“‘“‘proof of [a party’s] violation of a statutory standard of
conduct raises a presumption of negligence’”’”]; Golden Gate
Water Ski Club v. County of Contra Costa (2008)
165 Cal.App.4th 249, 255 [“[v]iolations of a planning code
constitute a public nuisance”].)
But when Nolan produced evidence in discovery in the
civil action that he had obtained a permit for the front yard
structures, the Boppanas’ nuisance and negligence causes of
4 In their nuisance cause of action, the Boppanas alleged
that “Nolan knew of the legal requirements to obtain building
permits and/or variances to construct . . . one or more of the
walls, fences, gates, and structures” and that he “proceeded
without authority or permits, without review and approval of
building plans and inspections, irrespective [of] laws . . . put in
place to protect the rights of the Boppanas.” In their negligence
cause of action, the Boppanas alleged that “Nolan owes a duty
to the Boppanas to not construct or maintain illegal,
unauthorized, defective structures and land uses” and that the
“structures created . . . by Nolan have not been used and/or
maintained within a standard of care . . . nor has plans or
permits been applied, reviewed and approved.”
15
action became more difficult to prove. Nolan’s newly disclosed
permit “surprised” Rao Boppana, who had always believed the
structures were illegal and unpermitted. It became imperative
for the Boppanas to seek revocation of the permit, which they
ultimately achieved in the mandamus action. As the Boppanas
argued in support of their petition for a writ of mandate: “By
the R-Permit, Nolan has obtained an end-around process . . .
whereby he obtained approval for structures . . . that are known
by Nolan and City to be illegal. [¶] . . . [¶] Despite knowledge
of his illegality, . . . Nolan has sought to obtain use and
legitimacy of his illegal structures via the R-Permit.”
Thus, the Boppanas had a significant private financial
reason for filing the petition for writ of mandate—to compel the
City to revoke the R-Permit and (re)establish the illegality of
Nolan’s construction. 5 And once the Boppanas accomplished
this goal, they promptly asked the trial court to vacate the stay
of the civil action and argued that their victory in the
mandamus action “substantially” proved Nolan’s construction
was illegal, created a nuisance, and caused the Boppanas’
damages. The Boppanas told the trial court that the mandamus
action had essentially proven their case on liability and that the
only remaining issues to be “tried and adjudicated” in the civil
action were the amount of their damages and their entitlement
to other remedies. As the superior court commented, in finding
5 The Boppanas were well aware that proving Nolan’s front
yard construction was illegal would support their nuisance
cause of action. In a brief filed in support of their petition for
writ of mandate, the Boppanas argued, “It is well settled that
violations of municipal/ building/planning and/or zoning codes
are a public nuisance.”
16
the Boppanas expected the mandamus action to aid their civil
action, “What more do I need?”
The Boppanas’ other court filings provided further
support for the superior court’s conclusion that the civil action
and the mandamus action were “intertwined.” The Boppanas
attempted to relate the civil action and the mandamus action.
When that effort failed because the superior court in the
mandamus action could not preside over civil actions (which are
assigned to the independent calendar courts), the Boppanas
filed an ex parte application to stay the civil action “pending
resolution” of the mandamus action. The Boppanas argued the
mandamus action could resolve or moot some of the issues in
the civil action. The superior court did not abuse its discretion
in concluding that the Boppanas expected the mandamus action
to assist their civil action and that the Boppanas stood to gain
much more than the $88,500 in attorneys’ fees they expended.
In Norberg v. California Coastal Com. (2013)
221 Cal.App.4th 535 the court reached a similar conclusion on
similar facts. In that case the plaintiff obtained a writ of
mandate directing the California Coastal Commission to set
aside certain restrictions it had imposed on a permit for
residential improvements. The court in Norberg reversed an
award of attorneys’ fees under section 1021.5 because, even
though the plaintiff did not obtain a monetary award and did
not intend to sell his property in the foreseeable future, “the
financial burden of the litigation was not out of proportion to
[his] individual stake in the matter.” (Norberg, at p. 539.) The
court concluded that the plaintiff’s “goal was to enhance his
private property with $250,000 in improvements. We call this a
financial incentive. We cannot slice it any other way.” (Id. at
p. 545; see Beach Colony II v. California Coastal Com. (1985)
166 Cal.App.3d 106, 109, 114 [plaintiff was not entitled to fees
17
under section 1021.5 where its “financial stake in the outcome
of its litigation was substantial” and where the writ of mandate
that ordered the agency to strike one of the conditions in a
construction permit allowed the plaintiff to build the
development at greatly reduced cost]; Schwartz v. City of
Rosemead (1984) 155 Cal.App.3d 547, 551-552, 559 [plaintiff
was not entitled to fees under section 1021.5 where the
plaintiff, who obtained an order compelling the city to conduct
an environmental review, “initiated the suit to prevent the
threat of damage or depreciation to his property”].)
Like the plaintiff in Norberg v. California Coastal Com.
(and the plaintiffs in similar cases), the Boppanas’ incentive for
seeking a writ of mandate was almost exclusively financial:
Revocation of Nolan’s R-Permit would create an easier path to
proving one of the key facts they needed to prove in their
nuisance and negligence causes of action; namely, that Nolan
built his front yard structures illegally. As the Boppanas
asserted (at the time they filed their petition): “It can hardly be
said that [the] Boppana[s] [are] not beneficially interested and
aggrieved by a neighbor obtaining a development and use
permit that has structures and other features zoning and other
land use rules do not allow. . . . [The] Boppana[s] [are]
not . . . public activist[s] from Pasadena complaining about a
permit or land use decision in Playa del Rey.” No, they are not.
(See Weiss v. City of Los Angeles (2016) 2 Cal.App.5th 194, 218
[“In enacting section 1021.5, ‘the Legislature was focused on
public interest litigation in the conventional sense: litigation
designed to promote the public interest by enforcing laws that a
governmental or private entity was violating, rather than
private litigation that happened to establish an important
precedent.’”].)
18
Although the Boppanas conceded at the hearing on the
motion for attorneys’ fees that the superior court could consider
their expected recovery in the civil action, the Boppanas now
contend the superior court should not have considered those
financial incentives. Emphasizing the words “litigation” and
“lawsuit” from a passage in Whitley, supra, 50 Cal.4th at page
1215, the Boppanas argue the superior court should have
focused only on “the financial incentives of the instant lawsuit.”
That’s not how it works. The Supreme Court in Whitley did not
hold that section 1021.5 limits the court’s consideration of a
litigant’s benefits to those obtained in the lawsuit. To the
contrary, as the Supreme Court discussed in Whitley (in the
same passage cited by the Boppanas), in evaluating the
financial burden under section 1021.5, the court should
consider, in addition to the costs of the litigation, any actual or
reasonably expected yields from the litigation. (Whitley, at
p. 1215; see Summit Media, supra, 240 Cal.App.4th at p. 192
[“Whitley [does not] say that a plaintiff’s financial incentive
must be ‘direct’”].) The Boppanas expected to prevail in the
mandamus action and anticipated that a victory there would
help them prevail in their civil action against Nolan. (See
Summit Media, at pp. 188-189, 193-194 [plaintiff had an
“enormous” financial incentive to seek a writ of mandate to
compel the city to set aside a settlement agreement that
exempted the plaintiff’s competitors from certain restrictions
that applied to others in the industry, where the plaintiff
claimed the agreement put him at a “competitive disadvantage”
that would “‘injure [his] business goodwill’” and where,
although the mandamus action did not yield a financial
recovery, the plaintiff had “a personal financial stake in [the]
litigation that was sufficient to warrant its decision to incur
significant attorney fees and costs”]; see also Millview, supra,
19
4 Cal.App.5th at p. 770 [plaintiff had a financial incentive to
challenge a cease and desist order that would have restricted its
purchased right to divert water].) The Boppanas had ample
financial incentive to pursue the mandamus action and try to
compel the City to revoke Nolan’s R-Permit.
The Boppanas assert, for the first time on appeal and
without citing any authority, that even if the superior court
properly considered the value of the civil action, the court should
have applied a discount factor of 83.33 percent to their $400,000
in compensatory damages, to account for the fact “5 out of 6 of the
subjects in the nuisance, trespass, and privacy invasion
claims. . . have no connection whatsoever to the front-yard
structures.” Because the Boppanas did not make this argument
in the superior court, it is forfeited. (See Sweetwater, supra,
36 Cal.App.5th at p. 993 [“‘arguments not asserted below are
waived and will not be considered for the first time on appeal’”].)
It also lacks merit. That the Boppanas alleged other causes
of action or identified other illegally constructed structures in
their cross-complaint in the civil action did not mean they valued
each cause of action against Nolan, and each allegation of
wrongdoing, equally. For example, Rao Boppana stated he was
seeking damages in the civil action not only for “diminution in
the value of the real property” related to the “[n]uisance from
Nolan’s unpermitted constructions,” but also for “[l]oss of . . .
abutter’s rights from Nolan’s front yard construction.” He
described the nuisance created by Nolan’s front yard structures
as follows: “I expect when I drive out of my driveway . . . the
house on either side would have the same requirements in terms
of fence heights. . . . [W]e have a difficult time backing out than
if . . . Nolan’s wall and the trees are not there. . . . [¶] It’s the
sight lines. . . . [¶] . . . [I]t’s get[ting] worse for us on a daily
20
basis.” In fact, the superior court probably underestimated the
compensatory damages that the Boppanas anticipated recovering
for Nolan’s unpermitted front yard encroachments, which they
claimed presented “safety issues” and caused them “fear.”6
Moreover, even applying the Boppanas’ belatedly asserted
discount factor of 83.33 percent to the total amount the
Boppanas were seeking in the civil action ($400,000 in
compensatory damages and $1 million in punitive damages),
the net proceeds from the civil action would be approximately
$233,000, which still exceeds the $88,500 in attorneys’ fees they
incurred in the mandamus action.
The cases the Boppanas cite are distinguishable. In
Investco, supra, 22 Cal.App.5th 443 investors who intervened in
a security fraud action “did not avoid any loss of money or value
to their assets or investments by specially appearing in the . . .
action, and there were no benefits that ‘immediately and
directly translated into’ economic terms for [the intervenors] as
a result of their success” because they simply secured “the right
to sue.” (Id. at pp. 468, 470.) In Heron Bay Homeowners Assn.
v. City of San Leandro (2018) 19 Cal.App.5th 376 the plaintiffs
obtained a writ compelling the city to prepare an environmental
impact report before approving a project, but the report would
not necessarily cause the city to set aside its approval, and the
plaintiffs filed the action in part because of the project’s impact
on “wildlife, aesthetics, health and noise levels.” (Id. at pp. 381,
6 In referring to the danger posed by the visual obstruction
created by the vegetation growing in Nolan’s front yard, counsel
for the Boppanas commented: “Fortunately, they haven’t been
in a car accident and died, so we don’t have a million-dollar
claim.”
21
390, 393.) In Boatworks, LLC v. City of Alameda (2019)
35 Cal.App.5th 290 the “estimated value of the case [was] lower
than the $558,052.50 in attorney fees,” any “financial benefit
[the plaintiff] might receive [was] ‘at least once removed from
the results of the litigation,’” and the plaintiff’s “financial
benefit was speculative.” (Id. at p. 310.) And in City of
Oakland, supra, 29 Cal.App.5th 688, an “unusual” case brought
by retirees who could not afford litigation expenses because of
their “relative poverty” and who did not stand to gain any “new
money” but were only trying “to avoid significant repayments of
pension benefits they likely had already allocated,” the court
held an award of fees was appropriate “‘in the interest of
justice.’” (Id. at pp. 702-703, 708-709.) In contrast to the
plaintiffs in these cases, the Boppanas, who own property on a
coastal bluff and do not claim poverty, obtained a significant
economic benefit for themselves in the mandamus action in the
form of facts and findings they could use in their private
litigation with their neighbor.
22
DISPOSITION
The superior court’s order denying the Boppanas’ motion
for attorneys’ fees is affirmed. The City and Nolan are to
recover their costs on appeal.
SEGAL, J.
We concur:
PERLUSS, P. J.
McCORMICK, J.*
* Judge of the Orange County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
23