Elfin Forest Harmony Grove Town Council v. County of San Diego CA4/1

Filed 8/18/22 Elfin Forest Harmony Grove Town Council v. County of San Diego CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ELFIN FOREST HARMONY GROVE D079222
TOWN COUNCIL et al.,
Plaintiffs and Respondents,
(Super. Ct. No.
v. 37-2018-00042927-CU-TT-CTL)
COUNTY OF SAN DIEGO,
Defendant,
RCS-HARMONY PARTNERS, LLC,
Real Party in Interest and
Appellant.
APPEAL from a postjudgment order of the Superior Court of San Diego
County, Katherine Bacal, Judge. Affirmed.
Richard A. Schulman, A Professional Corporation and Richard A.
Schulman, for Real Party in Interest and Appellant.
Shute, Mihaly & Weinberger, Winter King, Tori Ballif Gibbons and
Mindy K. Jian, for Plaintiffs and Respondents.
Appellant and real party in interest RCS-Harmony Partners, LLC
(Harmony) appeals a postjudgment order awarding Code of Civil Procedure1
section 1021.5 private attorney general fees to respondents Elfin Forest
Harmony Grove Town Council, Endangered Habitats League, and Cleveland
National Forest Foundation, after the trial court found merit to respondents’
challenge under state planning/zoning law and the California Environmental
Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) to the County of
San Diego’s (County) approval of a development project. The court entered
its order during the pendency of Harmony’s appeal from the judgment on the
CEQA claims. On appeal, this court found merit in some of Harmony’s
claims but rejected others and remanded the matter to the trial court to
modify its judgment.
On appeal from the postjudgment attorney fees and costs order,
Harmony contends this court eliminated almost all of respondents’ successes,
and thus the order must be reversed and returned to the trial court for
redetermination of appropriate fees. It contends that if we reach the order’s
merits, we must conclude the court abused its discretion in view of
respondents’ assertedly limited success in achieving their goals. Harmony
further contends that in making its attorney fee determination the court
should have considered the harms respondents’ litigation caused by
obstructing the provision of housing and weighed them against the benefits to
the public. We hold automatic reversal is not required under these
circumstances, and that this court may assess the impact of our appellate
opinion on respondents’ attorney fees claim. We reject Harmony’s other
contentions and affirm the postjudgment order.
1 Undesignated statutory references are to the Code of Civil Procedure.
2
FACTUAL AND PROCEDURAL BACKGROUND
By petition for writ of mandate and complaint for declaratory relief,
respondents challenged County’s approval of the Harmony Grove Village
South project (the Project) and certification of the Project’s environmental
impact report (EIR) under CEQA. They alleged two causes of action: (1)
violation of CEQA and (2) violation of state planning and zoning laws as well
as the Subdivision Map Act. They also sought a judicial declaration that
County’s action in approving numerous general plan amendments for
specified development was an abuse of discretion or otherwise failed to
comply with the law.2 According to the verified petition, the Project, located
in a buffer zone between an urban area called Harmony Grove Village and an
area of sensitive habitat, would develop 453 dwelling units, 5,000 square feet
of commercial or civic use, and an onsite wastewater treatment facility. In
part, respondents alleged the Project exceeded the maximum number of
dwelling units and created dense, urban development instead of large rural
lots, and rather than maintaining the homes on sewer systems, the Project
required annexation into a sewer district. As for the first cause of action,
respondents alleged that County and the Board of Supervisors committed
many CEQA violations, including by certifying an EIR that was inadequate
in analyzing and mitigating climate change/greenhouse gas emissions, air
quality, biological resources, fire hazards, land use, traffic/transportation and
emergency access, and failed to adequately consider cumulative and growth-
2 Declaratory relief is an equitable remedy, not a cause of action.
(Faunce v. Cate (2013) 222 Cal.App.4th 166, 173.) The trial court sustained
without leave to amend a demurrer to respondents’ request for a judicial
declaration, and thus respondents point out that in their attorney fees motion
they did not seek section 1021.5 attorney fees for the time spent on that
claim. Harmony does not challenge this assertion on appeal.
3
inducing Project impacts related to a general plan “Community Development
Model.”3 In their second cause of action, respondents alleged County violated
state law by approving a project inconsistent with general plan policies and
principles regarding placement of urban development, as well as the goals of
reducing vehicle trips, protecting residents from hazards and providing
affordable housing. They prayed for a judgment directing County to vacate
and set aside its certification of the EIR and Project approvals, as well as to
comply with CEQA and state planning and zoning law, the Subdivision Map
Act, and County’s general plan and zoning code. They sought a temporary
stay and injunctive relief to stop County from taking action to implement the
Project pending its compliance.
The trial court granted the petition and ordered County to set aside all
Project approvals and the EIR’s certification. It rejected some of respondents’
claims, ruling as speculative their claim that the Project was inconsistent
with a Local Agency Formation Commission policy pertaining to sanitation
district annexation, and finding respondents did not demonstrate that the
Project was fundamentally inconsistent with the general plan community
development model. It ruled that because the EIR studied several
alternative projects, it did not need to further consider the respondents’
proposed alternative (Harmony Common), and respondents did not meet
their burden to show County improperly rejected a “sewer alternative.” But
3 Respondents also alleged County violated CEQA and its guidelines by
relying on Project features to mitigate Project-related impacts, relying on
ineffective, unenforceable, or unproven mitigation measures, failing to
consider Project alternatives, adopting findings not supported by substantial
evidence, treating the Project and other projects (referred to as Valiano and
Otay 250), as a single project for purposes of approving general plan
amendments, using unapproved consultants, and failing to respond to public
comments. They alleged County violated state law by failing to retain all
records necessary for a complete administrative record.
4
the court agreed with respondents that the EIR relied on unsupported
greenhouse gas mitigation measures and did not address certain fire safety
issues or relied on unsupported fire evacuation measures. It ruled County
failed to proceed in the manner required by CEQA by not including certain
forecasts or analyses relevant to air quality impacts and failed to show the
Project was consistent with a regional plan for growth and development. The
court finally found the Project inconsistent with County’s general plan’s
requirement that developers provide an affordable housing component when
requesting a general plan amendment, and also conflicted with a community
plan policy that Elfin Forest development be served only by septic systems for
sewage management.
While Harmony’s appeal from that judgment was pending, respondents
moved for attorney fees and costs under section 1021.5. They argued they
were the successful parties on the merits, enforced an important right
affecting the public interest, conferred a significant benefit on the public
through the litigation, and demonstrated the necessity and financial burden
of private enforcement. They sought fees for all hours reasonably spent on
the case as they had assertedly obtained the entire remedy sought, as well as
a 1.5 multiplier, for a total request of $853,963.94 in fees and costs.
The trial court granted the motion in part, awarding respondents
$765,402.60 in attorney fees (including an undisputed sum of $54,320 in fees
for bringing the motion) and all of their requested $36,218.95 in costs. It
found respondents were “successful parties in an action which affected the
public interest of ensuring full disclosure and mitigation of significant
environmental impacts and which benefitted the general public/large class of
persons by addressing greenhouse gas, fire safety, air quality and affordable
housing issues.” The court declined to apply a multiplier, however, stating it
5
had taken into account the partially contingent nature of the case, the issues’
complexity, and the exceptional skill in obtaining an exceptional public
benefit when it applied an above average lodestar.4
On Harmony’s appeal from the judgment, this court, reviewing the
County’s action, reached some conclusions different from the trial court.
(Elfin Forest Harmony Grove Town Council v. County of San Diego (Oct. 14,
2021, D077611) [nonpub. opn.].) Like the trial court, we found flaws in the
4 The lodestar is the number of hours reasonably expended multiplied by
the reasonable hourly rate. (Gunther v. Alaska Airlines, Inc. (2021) 72
Cal.App.5th 334, 357 (Gunther).) The trial court’s order awarding attorney
fees states: “[T]he Court found for [respondents] on the claims that the
[Project] approvals violated CEQA and state planning and zoning law.
[Citation.] Thus, under section 1021.5 [respondents] are successful parties in
an action which affected the public interest of ensuring full disclosure and
mitigation of significant environmental impacts and which benefitted the
general public/large class of persons by addressing greenhouse gas, fire
safety, air quality and affordable housing issues. Additionally, the financial
burden of private enforcement make[s] the award appropriate, in light of
petitioners’ prior administrative efforts and their non-profit status.
[Citation.] Harmony[’s]. . . arguments to the contrary are unpersuasive.
Harmony . . . also argues the result of this case harms the public by delaying
housing development and negatively impacting the state’s housing goals.
However, Harmony . . . did not cite any authority to support that this is a
consideration that should be weighed when determining whether fees should
be awarded in a CEQA case.”
As to the amount of the award, the court ruled: “Here, [respondents]
spent 1,334 hours over five-and-a-half years, not including the fees on fees.
[Citation.] The claimed hours are supported by declarations and time
records. [Citation.] [Respondents’] counsel also proposes a 5 [percent]
reduction to account for staffing changes, and eliminated possible duplicative
or excessive tangential hours. [¶] . . . [¶] . . . Harmony . . . argues the time
[respondents] spent on other cases is excessive. [Citation.] Harmony[’s]
reliance on the amount of hours claimed in a different related case does not
constitute identifying specific excessive time entries here. Further, because
the cases were related, the work done on them impacted the present case.
Moreover [respondents] provide adequate explanation and support for the
hours.”
6
Project’s greenhouse gas mitigation measures and inconsistency with
County’s general plan as to affordable housing. However, contrary to the
trial court, we held the EIR adequately addressed fire safety and evacuation,
as well as the Project’s consistency with County’s regional air quality and
transportation/development plans. We affirmed the judgment in part and
reversed it in part, and remanded the matter for the court to issue a new writ
of mandate and judgment and to conduct further proceedings consistent with
our opinion. We ordered the parties to bear their own costs on appeal.5
DISCUSSION
I. Section 1021.5 Attorney Fees: Legal Standards and Standard of Review
“ ‘Section 1021.5 codifies the private attorney general doctrine the
Supreme Court adopted in Serrano v. Priest (1977) 20 Cal.3d 25 . . . .
[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.” ’ ” ’ [Citation.] ‘ “In short, section 1021.5 acts as an incentive for
the pursuit of public interest-related litigation that might otherwise have
been too costly to bring.” ’ ” (Save Our Heritage Organisation v. City of
San Diego (2017) 11 Cal.App.5th 154, 159 (Save Our Heritage).)
“Section 1021.5 permits a trial court to award attorney’s fees to a
successful party in any action that ‘(1) enforced an important public right, (2)
5 In their opening brief on appeal, Harmony asserts that once this court’s
opinion became final, it proposed to respondents that they stipulate to
reverse the attorney fee order and return the matter to the trial court, but
respondents rejected the offer. Harmony provides no record citation for these
events.
7
conferred a significant public benefit, and (3) is of a type that private
enforcement was necessary, and the financial burden justifies subsidizing the
successful party’s attorneys.’ [Citation.] ‘Although the statute is phrased in
permissive terms, a court’s discretion to deny attorney’s fees to a party that
meets the statutory requirements of section 1021.5 is limited. [Citation.]
Unless special circumstances would render an award of section 1021.5
fees unjust, fees must be awarded under the statute where the statutory
criteria are met.’ ” (Burgess v. Coronado Unified School District (2020) 59
Cal.App.5th 1, 7; see also Conservatorship of Whitley (2010) 50 Cal.4th 1206,
1214.)
The term “successful party” in section 1021.5 is synonymous with a
prevailing party. (Graham v. Daimler Chrysler Corp. (2004) 34 Cal.4th 553,
571; Save Our Heritage, supra, 11 Cal.App.5th at p. 160.) The term “means
the party to litigation that achieves its objectives.” (Graham, at p. 571; Save
Our Heritage, at p. 160.) The California Supreme Court has taken a “broad,
pragmatic” view of what constitutes a successful party under this law.
(Graham, at p. 565; Department of Water Resources Environmental Impact
Cases (2022) 79 Cal.App.5th 556, 571.) “ ‘In determining whether a plaintiff
is a successful party for purposes of section 1021.5, “[t]he critical fact is the
impact of the action, not the manner of its resolution.” ’ ” (Graham, at p.
566.) “The trial court ‘ “ ‘must realistically assess the litigation and
determine, from a practical perspective, whether or not the action served to
vindicate an important right so as to justify an attorney fee award’ under . . .
section 1021.5.” ’ ” (Department of Water Resources, at p. 571, quoting
Graham, at p. 566; see also Woodland Hills Residents Assn. Inc. v. City
Council (1979) 23 Cal.3d 917, 938.)
8
“ ‘It is settled, however, that a party need not prevail on every claim
presented in an action in order to be considered a successful party within the
meaning of . . . section [1021.5].’ [Citation.] A party who ‘ “ ‘ “succeed[s] on
any significant issue in litigation which achieves some of the benefit the
parties sought in bringing suit” ’ ” ’ [citation] may be considered a prevailing
party ‘ “ ‘ “for attorneys’ fees purposes.” ’ ” ’ [Citation.] ‘The significance of
the . . . issue was a matter for the trial court’s judgment.’ ” (Sweetwater
Union High School Dist. v. Julian Union Elementary School Dist. (2019) 36
Cal.App.5th 970, 982 (Sweetwater Union).) To discern whether a significant
benefit has been bestowed on the general public or a large class of persons,
the trial court determines the significance of the benefit, as well as the size of
the class receiving the benefit, “from a realistic assessment, in light of all the
pertinent circumstances, of the gains which have resulted in a particular
case.” (Woodland Hills Residents Assn. v. City Council, supra, 23 Cal.3d at
p. 940.) The necessity and financial burden requirement focuses on two
issues: whether private enforcement was necessary and whether the financial
burden of private enforcement warrants subsidizing the successful party’s
attorneys. (Conservatorship of Whitley, supra, 50 Cal.4th at pp. 1214–1215.)
Generally, we review the trial court’s decision whether to award section
1021.5 attorney fees for abuse of discretion. (Save Our Heritage, supra, 11
Cal.App.5th at p. 160.) However, where resolution of the question turns
primarily on interpretations of section 1021.5 and applicable case authorities,
we review the matter de novo as a question of law. (Ibid.)
9
II. Automatic Reversal of the Attorney Fees Award is Not Warranted for the
Limited Reversal on the Merits
Harmony contends that this court’s decision on the merits requires us
to reverse the postjudgment attorney fees and costs order and return the
issue of fees and costs to the trial court. It relies on the settled principle that
an order awarding fees falls with reversal of the judgment on which it is
based. (See Gunther, supra, 72 Cal.App.5th 334, 358; Shirvanyan v. Los
Angeles Community College Dist. (2020) 59 Cal.App.5th 82, 107; Harris v.
Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1027 [“the award of
costs necessarily falls with the judgment”]; Allen v. Smith (2002) 94
Cal.App.4th 1270, 1284.) According to Harmony, “reversal is appropriate, if
not commanded, when appellate activity changes or eliminates the premises
of a fee award.” It maintains that the appellate briefing should have been
unnecessary once our prior opinion became final as the case law is “simple
and long-established,” and because respondents did not stipulate to reverse
the order after the appeal’s resolution, they should be denied fees on the
appeal of the merits and on this appeal.
Respondents disagree. They point out this court reversed the
underlying order only in part, upholding the trial court’s determination on
their causes of action for County’s CEQA and state planning/zoning law
violations. They argue that though the trial court agreed with more of their
theories than this court, both this court and the lower court concluded the
Project approvals violated CEQA and the planning and zoning law.
Respondents maintain their success was not limited or partial, but they
prevailed entirely both in the lower court and on appeal on those two claims,
leaving no basis to modify, much less overturn, the attorney fee order.
10
A complete reversal of a judgment or order would of course nullify an
accompanying attorney fee award. (See Shirvanyan v. Los Angeles
Community College Dist., supra, 59 Cal.App.5th at p. 107; Gillan v. City of
San Marino (2007) 147 Cal.App.4th 1033, 1054; Allen v. Smith, supra, 94
Cal.App.4th at p. 1284.) But as respondents state, the circumstances here
involve a “limited reversal” (Gunther, supra, 72 Cal.App.5th at p. 359) of the
order. That is, we upheld the trial court’s order in some respects, but
reversed it in others. As respondents correctly point out, this court has held
that in the event of a limited reversal on the merits, automatic reversal of an
attorney fee award is not mandated; we 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.” (Id., at p. 359, citing
Ventas Finance I, LLC v. Franchise Tax Bd. (2008) 165 Cal.App.4th 1207,
1233–1235 (Ventas); see Boatworks, LLC v. City of Alameda (2019) 35
Cal.App.5th 290, 307.)
Gunther and Ventas analyzed limited reversals to reach different
conclusions on the associated attorney fee awards in those cases. In Gunther,
a panel of this court in a Private Attorneys General Act (PAGA) case rejected
the defendant’s argument that federal law preempted state law pertaining to
wage statements, but concluded the trial court had erred in awarding the
plaintiff over $25 million in heightened civil penalties. (Gunther, supra, 72
Cal.App.5th at pp. 340–341.) We remanded the matter to the trial court to
redetermine the penalty amount under a different PAGA provision. (Id. at
pp. 340, 348.) The defendant argued that reversal of the heightened civil
penalties required reversal of an ensuing attorney fee award in its entirety.
(Id. at p. 358.) We acknowledged the proposition that an attorney fee order
11
falls with reversal of the underlying judgment. (Ibid.) But citing Ventas,
supra, 165 Cal.App.4th 1207, we explained in the event of a limited reversal,
we must assess whether a reviewing court could say with certainty the lower
court would have exercised its discretion in the same way had the successful
party not prevailed on the reversed issue. (Gunther, at p. 359.) Applying
that standard, we rejected the defendant’s argument, as well as the argument
that the amount of fees was unreasonable because the plaintiff had achieved
only limited success: “The record supports a conclusion that a recalculation
of PAGA penalties will not affect [plaintiff’s] ‘ “degree of success” ’ as it
relates to the attorney’s fees award. Thus, the attorney’s fees order is
unaffected by the trial court’s error in calculating PAGA penalties.” (Id. at
p. 358.) This court explained that the reversal was limited to the civil
penalties, and other than that issue, the appeal “did not change [plaintiffs’]
success in this litigation. . . . As a result of this litigation, the aggrieved
employees will obtain the information necessary to independently ensure
they receive all compensation earned and owed. That the trial court here
awarded civil penalties under the wrong statute does not materially impact
the degree of Gunther’s success . . . .” (Id. at p. 359.)
In Ventas, a limited liability company (Ventas) sought a refund for
taxes paid to the Franchise Tax Board (FTB), arguing their imposition
violated the [Constitution’s] Commerce and Due Process clauses. (Ventas,
supra, 165 Cal.App.4th at p. 1213.) The trial court agreed and ruled Ventas
was entitled to a full tax refund. (Id. at p. 1214.) Though Ventas had
incurred about $143,000 in attorney fees, it sought $30 million in fees under
sections 1021.5 and 1032 on the theory that if the court’s decision were
upheld, thousands of limited liability companies could obtain over a billion
dollars in refunds in suits brought by the same attorneys. (Ibid.) Applying a
12
1.5 multiplier for the benefits conferred by the litigation, counsel’s skill, and
the limited novelty of the work, the trial court awarded $215,016 in attorney
fees. (Id. at pp. 1215–1216.)
The appellate court agreed that the taxes paid violated the Commerce
Clause. (Ventas, supra, 165 Cal.App.4th at p. 1221.) However, it rejected
Ventas’s argument that the tax refund had to be the entire amount paid (id.
at pp. 1229, 1233), holding the trial court should instead have ordered a
refund of the difference between the money actually paid and the lawful
amount that could be collected using a proper apportionment method. (Id. at
p. 1233.) This partial reversal of the judgment, the appellate court held,
required reversal of the postjudgment section 1021.5 attorney fee award
because it could not “say with certainty that the [trial] court would exercise
its discretion in the same way had Ventas not prevailed on its contention that
it was entitled to a full refund.” (Id. at pp. 1233–1234, see also id. at
p. 1212.) It pointed out the partial reversal might affect the court’s
assessment of significant benefit, which was based in part on the amount of
the refund; the court’s application of a 1.5 multiplier in part based on a
weighing of duplicative work against the “ ‘considerable benefits’ ” received;
and the fact a successful party under section 1021.5 was not the same as a
13
prevailing party under section 1032. (Id. at p. 1234.)6 The court remanded
the matter to allow the lower court to again exercise its discretion in light of
the partial reversal of the underlying judgment. (Id. at p. 1235.)
Given the limited reversal in this case, we turn to the question
presented in both Gunther and Ventas: whether we can say with certainty the
lower court would have exercised its discretion in the same way had
respondents not prevailed on the reversed issues, allowing us to leave the
attorney fees award intact. (Gunther, supra, 72 Cal.App.5th at p. 359;
Ventas, supra, 165 Cal.App.4th at pp. 1233–1234.) In doing so, we keep in
mind the principle that a plaintiff can prevail on any significant issue that
achieves some of the benefit despite losses on other issues and still be a
successful party within the meaning of section 1021.5. (Sweetwater Union,
supra, 36 Cal.App.5th at p. 982.) We further consider that a limited reversal
6 The Ventas court said: “For example, the trial court’s determination
that Ventas had demonstrated that a large ascertainable class of persons
would significantly benefit from the litigation was based, at least in part,
upon an estimate of the total amount of potential refunds that assumed
LLC’s that had some income attributable or derived from California sources
would nonetheless be entitled to a full refund. Similarly, the partial reversal
of the underlying judgment could also affect the court’s determination that it
was appropriate to apply a 1.5 multiplier to the lodestar figure of
$143,343.75. One of the factors the court weighed was that much of the work
in this case was duplicative of the work in [another case], except for the issue
of reformation and whether a full or partial refund was due. The court
explicitly weighed the duplicative nature of the work factor against the
‘considerable benefits’ secured by Ventas’s litigation in determining that the
1.5 multiplier was reasonable. The trial court's assessment of the relative
weight of these factors could also reasonably change in light of this court's
determination that Ventas was not entitled to the full refund it had obtained
from the trial court. Finally, because a ‘successful party’ within the meaning
of . . . section 1021.5 is not the same as the definition of the ‘prevailing party’
pursuant to . . . section 1032, the partial reversal could conceivably also affect
the court’s discretionary determination that Ventas is a successful party for
the purpose of a fee award.” (Ventas, supra, 165 Cal.App.4th at p. 1234.)
14
does not necessarily change the respondents’ degree of success. (Gunther, at
pp. 358–359.)
III. Respondents Were Successful on Both Claims and Achieved Their Goal of
Setting Aside the EIR and Project Approval
It is true that “ ‘a reduced fee award is appropriate when a claimant
achieves only limited success’ ” (Chavez v. City of Los Angeles (2010) 47
Cal.4th 970, 989–990), and that an appellate reversal of some of the relief
sought on one claim would warrant returning the matter to the trial court to
reassess whether the litigation conferred a significant benefit. (Ventas,
supra, 165 Cal.App.4th at pp. 1212, 1233–1234.) But this is not a case of
partial success. Our reversal as to some of respondents’ theories as to the
EIR’s inadequacy or how County’s approval violated CEQA does not
materially affect the degree of respondents’ success on both of their causes of
action. That is, there was no change in the result they sought: to vacate and
set aside the EIR and the Project’s approval.
Our conclusion that the lower court erred in finding merit to some of
respondents’ theories encompassed in their causes of action does not affect
the attorney fees order, which is based on respondents’ success on both of its
causes of action. The trial court ruled those claims resulted in significant
benefit to the general public by “ensuring full disclosure and mitigation of
significant environmental impacts,” and “addressing greenhouse gas [and]
affordable housing issues.” They also preserved the integrity of planning and
zoning laws. Litigation brought to enforce CEQA provisions, as well as
zoning laws, involves important rights affecting the public interest for
purposes of section 1021.5. (Center for Biological Diversity v. County of
San Bernardino (2010) 188 Cal.App.4th 603, 612; La Mirada Avenue
Neighborhood Assn. v. Hollywood v. City of Los Angeles (2018) 22 Cal.App.5th
151149, 1159 [requiring adherence to zoning laws furthers a significant public
policy, and “ ‘concern[s] “a vital public interest” ’ ”], quoting Schafer v. City of
Los Angeles (2015) 237 Cal.App.4th 1250, 1263.) Fee awards should not be
reduced simply because a plaintiff failed to prevail on every contention raised
in their lawsuit. (Sweetwater Union, supra, 36 Cal.App.5th at p. 997; see also
Environmental Protection Information Center v. Department of Forestry &
Fire Protection (2010) 190 Cal.App.4th 217, 235 (EPIC) [where a party
pursued only one claim for relief—invalidity of a “sustained yield plan”
related to logging of timberland—and succeeded on that claim, the fact the
reviewing court did not adopt all of its contentions in support of its claim did
not require reduction in the amount of attorney fees].) “ ‘Litigants in good
faith may raise alternative legal grounds for a desired outcome, and the
court’s rejection of . . . certain grounds is not a sufficient reason for reducing a
fee. The result is what matters.’ ” (Sweetwater Union, supra, at p. 997.)
We conclude under the circumstances here, our reversal did not change
respondents’ degree of success, and thus “the court would have exercised its
discretion the same way had [respondents] not prevailed on the issue[s] on
which we reverse[d].” (Gunther, supra, 72 Cal.App.5th at p. 359.) Notably,
unlike Ventas, the trial court here did not include a multiplier, so there is no
need to assess whether any asserted difference in benefits achieved
warranted a change in the lodestar. Respondents here obtained the same
litigation outcome despite the failure of some of their theories.
Further, because this matter turns on the effect of our appellate
opinion, this court “is in at least as good a position as the trial court” to judge
how it impacts the section 1021.5 attorney fee analysis. (Accord, EPIC,
supra, 190 Cal.App.4th at pp. 229–230.) In EPIC, the appellate court
assessed the impact of a California Supreme Court opinion and its “ ‘legal
16
effects’ ” on the question of whether litigation challenging the validity of
approval of a sustained yield plan related to logging timberland conferred a
significant benefit on the general public. (Id. at p. 230.) Though the Court of
Appeal had upheld regulatory approval of the plan (id. at p. 226), the
California Supreme Court invalidated it because it was not a single,
consolidated document the approving agency and the public could use in
monitoring compliance with the plan’s provisions. (Id. at pp. 233–234.) As a
result, the “appellate proceedings in th[e] case . . . altered the circumstances
[the court] must consider in determining the gains that have resulted from
this case” such that the appellate court was “better positioned to make the
substantial benefit determination than is the trial court, and [it] owe[d] it no
deference on this question.” (Id. at pp. 230–231.)7
Like in EPIC, our appellate opinion altered the circumstances so as to
make this court better positioned to decide how it impacted the attorney fee
analysis. But unlike the California Supreme Court’s ruling in EPIC, our
opinion merely reversed some of the legal theories respondents presented
within their causes of action, which still achieved their sought-after result.
The litigation still conferred a significant benefit on the public within the
meaning of section 1021.5, as the areas found inadequate—greenhouse gas
emissions and affordable housing—involve important environmental and
public policy considerations. (Accord EPIC, supra, 190 Cal.App.4th at p. 234;
7 In EPIC, supra, 190 Cal.App.4th 217, the appellate court ultimately
held the litigation conferred a significant benefit because submitting an
adequate plan for approval and exercising greater care in preparing future
plans would enhance effective public review of future logging and increase
participation in environmental decisionmaking, as well as improve the
approving agency’s procedures. (Id. at p. 234, see also ibid. [“extent of the
public benefit ‘need not be great’ to justify an attorney fee award” and high
court’s “holding regarding necessity of creating a single, integrated [plan]
qualifie[d] as a significant benefit”].)
17
Center for Biological Diversity v. County of San Bernardino, supra, 185
Cal.App.4th at p. 895 [significant benefit may be recognized simply from
effectuation of a fundamental statutory policy; finding significant benefit
prong met where court found the final EIR inadequate as to air quality and
water supply, important environmental considerations].) And, because
respondents obtained all of the results they sought on two successful causes
of action, our failure to adopt some of their contentions did not require
reduction of the fee award. (EPIC, supra, at pp. 244–245 [holding that the
single cause of action of one of the parties (the Steelworkers) challenging the
sustained yield plan did not involve related and unrelated claims and, in the
end, they obtained all the results they sought; “In light of the result, the
Supreme Court’s failure to adopt some of the contentions the Steelworkers
advance in support of their claim does not require reduction of the fee
award”].)
The appellate court in EPIC nevertheless remanded the matter to the
trial court to assess the level of success or “ ‘ “significance of the overall relief
obtained by the plaintiff[s] in relation to the hours reasonably expended on
the litigation.” ’ ” (EPIC, supra, 190 Cal.App.4th at p. 239, quoting Harman
v. City and County of San Francisco (2007) 158 Cal.App.4th 407, 414 .) But
this was because the Court of Appeal found both successful and unsuccessful
claims and applied a test used in cases of limited success. (EPIC, at pp. 239–
240.) Acknowledging that the agencies argued the respondents—even the
fully successful Steelworkers—should not be compensated for hours spent on
litigating unsuccessful theories, it left resolution of those “ ‘factual matters’ ”
to the trial court on remand. (Id. at p. 247.) The Court of Appeal cited
Harman, at p. 418, Sundance v. Municipal Court (1987) 192 Cal.App.3d 268,
18
274 (Sundance), and a federal district court case from a federal Court of
Appeals of the District of Columbia Circuit8 in reaching this decision.
We are not persuaded that this portion of EPIC was the correct result,
at least as to the Steelworkers, who achieved complete success. Harman
involved partially prevailing plaintiffs: plaintiffs who had both successful and
unsuccessful claims, unlike respondents here who succeeded on their two
claims. (Harman v. City and County of San Francisco, supra, 158
Cal.App.4th at pp. 416–418.) In Sundance, the successful plaintiffs in a case
challenging procedures for incarceration of public inebriates asserted the
court erroneously omitted some 458 hours of attorney time spent on legal
theories on which they did not prevail. (Sundance v. Municipal Court, supra,
192 Cal.App.3d at p. 271.) The appellate court in Sundance elected to leave it
to the trial court to decide whether the successful plaintiff reasonably
expended time and incurred fees on an unsuccessful legal theory. (Id. at
p. 274.) At the same time, it observed that section 1021.5 “simply states that
awards are to be made to successful parties, with no mention of excluding
compensation for the successful parties’ unsuccessful legal theories.” (Id. at
p. 273.) To the extent EPIC and Sundance are inconsistent with our holding,
we do not follow them.
Harmony’s arguments to the contrary are unavailing. It maintains
respondents failed to achieve dozens of goals, and also failed in an effort to
8 In that case, American Petroleum Institute v. U.S. E.P.A. (D.C. Cir.
1996) 72 F.3d 907, 912, the court stated that a single claim might be “so
frivolous” as to make all time spent on it unreasonable, but pointed out a
frivolousness argument was not made on appeal. (Id. at p. 912.) We are not
bound by federal circuit court of appeal decisions. (Caliber Paving Company,
Inc. v. Rexford Industrial Realty & Management, Inc. (2020) 54 Cal.App.5th
175, 186.) In any event, as in American Petroleum, Harmony does not argue
respondents’ claims were frivolous.
19
“ban” the project or correct the EIR in multiple respects. It urges us to
remand the matter and direct the trial court to adjust for these factors in
setting attorney fees. But as respondents point out, the claim
mischaracterizes the record; their requested relief was not to forever stop the
project, and such relief is legally unavailable in any event. (See, e.g., La
Mirada Avenue Neighborhood Assn. v. Hollywood v. City of Los Angeles,
supra, 22 Cal.App.5th at pp. 1159, 1160 [goal of setting aside project approval
is not one to “stop[] the Project forevermore” and “petitioner cannot seek (and
a court cannot award) such ‘now-and-forevermore’ relief”].)
Harmony also contends that “[w]hen an environmental document ‘could
be repaired,’ ‘the correction of which was not likely to change the project,’ a
court can deny or greatly reduce a fee award.” It asserts respondents had a
“huge list of major changes” or corrections to the project that were “goals, not
just theories,” and respondents failed on all but two. In making this
argument, Harmony cites to Concerned Citizens of La Habra v. City of La
Habra (2005) 131 Cal.App.4th 329, which does not alter our conclusion. In
that case, the petitioners lost five causes of action, but succeeded in obtaining
a writ rescinding a warehouse facility’s approval until a mitigated negative
declaration was revised to correct CEQA defects. (Id. at pp. 331–332.) The
trial court, however, denied a request for section 1021.5 attorney fees, ruling
the petitioners “were only successful in one small regard” and “did not obtain
the outcome they desired.” (Id. at p. 333.) The Court of Appeal affirmed,
acknowledging it was bound to defer to the lower court’s evaluation of the
significance of the litigation’s benefit and only reverse if the trial court was
“ ‘clearly wrong.’ ” (Id. at p. 334.) In upholding the denial of attorney fees,
the appellate court observed the trial court “felt the [CEQA] inadequacy was
a ‘minute blemish’ that could be repaired” without preparing an EIR and that
20
the petitioner “did not establish a precedent that applied statewide; rather, it
successfully asserted a defect in CEQA’s process, the correction of which was
not likely to change the project.” (Id. at p. 335.)
Unlike in Concerned Citizens of La Habra, here, respondents’
successful claims did not assert a “minute blemish” lacking a statewide
precedent. (Concerned Citizens of La Habra v. City of La Habra, supra, 131
Cal.App.4th at p. 335; accord Center for Biological Diversity v. County of San
Bernardino, supra, 185 Cal.App.4th at p. 895 [finding Concerned Citizens of
La Habra inapposite for the same reason].) Nothing in that case compels us
to conclude the lower court would exercise its discretion to award attorney
fees any differently on respondents’ two successful causes of action in which
they obtained their sought-after relief.
Harmony does not otherwise meaningfully discuss or challenge the
financial burden criterion, or the trial court’s calculation of an “above-
average” lodestar rate. We presume the correctness of the court’s attorney
fee order, and do not disturb those determinations.
IV. Consideration and Balancing of Benefits with Harms the Litigation
Caused
Harmony’s final argument for reversal is that the trial court abused its
discretion by failing to consider the harm caused by respondents’ litigation as
part of the question whether they were entitled to fees at all or so as to apply
a diminishing multiplier. Harmony maintains the lawsuit and resulting
appeal “have delayed for years the construction and occupancy of vitally
needed housing,” and that this court should either disregard the contrary
decision in EPIC, supra, 190 Cal.App.4th 217 or interpret it to permit such
balancing of the harms and benefits both in determining the lodestar and
considering a multiplier. Harmony asserts that if we determine any award is
21
proper, we must reverse and remand for the trial court to consider these
issues.
We reject the contention. In EPIC, the appellate court rejected the
regulatory agencies’ argument “ ‘that a court’s inquiry into significant benefit
must balance the benefits that both parties conferred on the public through
the litigation, to determine whether there was any net significant benefit
bestowed on the public by [respondents].’ ” (EPIC, supra, 190 Cal.App.4th at
p. 231.) The agencies sought to compare the question to the type of
assessment a court makes in deciding whether to issue a preliminary
injunction, and asked the appellate court to “ ‘make clear that the courts
must balance the respective equities of the benefits and detriments conferred
by each party to the suit, and deny fees if on balance no net benefit has been
conferred by the [respondents] on a large class of individuals or the general
public.’ ” (Ibid.)
We agree with the EPIC court’s observation that nothing in section
1021.5’s text supports the argument: “The statute asks whether the
successful party’s action has conferred a ‘significant benefit’ [citation], not, as
the Agencies would have it, a “net significant benefit.’ ” (EPIC, supra, 190
Cal.App.4th at p. 231.) As in EPIC, “[w]e are disinclined to adopt a
construction of the statute that ‘neither the context nor the language of
section 1021.5 demands.’ ” (Ibid.)
Harmony nevertheless points out that the EPIC court suggested such
balancing may be appropriate to determine the amount of fees, or
adjustments to the lodestar amount. (See EPIC, supra, 190 Cal.App.4th at p.
233 [“To the extent the Agencies rely on their success on a number of issues
in the Supreme Court, their argument is not properly viewed as an attack on
respondents’ entitlement to attorney fees, but as an argument that the
22
lodestar amount should be reduced because respondents achieved less than
complete success in this litigation”].)
As stated, unlike some of the parties in EPIC, respondents here did not
achieve only limited success on their claims. It is not necessary to address
the point further, for we hold that even if such balancing is appropriate in
determining the amount of fees, Harmony has not demonstrated any
assumed harm from respondents’ litigation would impact the attorney fees
analysis. As stated above, the trial court denied Harmony’s request to take
judicial notice of the Governor’s executive order on which Harmony relies in
making its contention. Harmony does not meaningfully challenge the court’s
evidentiary ruling.9 Further, respondents did not seek to entirely bar the
project from proceeding such that it would result in no new housing. Finally,
as respondents point out, their litigation successfully challenged the project’s
failure to provide affordable housing and this court upheld the trial court’s
ruling in that respect. Thus, by requiring County to comply with its general
plan’s affordable housing requirement, respondents furthered legislative
housing goals. (See Gov. Code, § 65589.5(a)(2)(A), (B) [“California has a
housing supply and affordability crisis of historic proportions”; “While the
causes of this crisis are multiple and complex, the absence of meaningful and
9 In a footnote, Harmony acknowledges the trial court “questioned the
authenticity” of the executive order, and asserts “neither the content nor the
authenticity of this Executive Order should be in dispute.” This cursory
argument is insufficient to demonstrate error, particularly as we presume the
correctness of the court’s ruling. In its reply brief, Harmony cites to various
Internet web pages from “chapman.edu,” “email.ojo.com” and the San Diego
Union Tribune for various propositions, including that housing is the object of
most CEQA litigation. It does not state whether the trial court considered
these matters, and does not ask us to take judicial notice of them. We decline
to do so.
23
effective policy reforms to significantly enhance the approval and supply of
housing affordable to Californians of all income levels is a key factor”].)
DISPOSITION
The postjudgment order is affirmed.
O'ROURKE, Acting P. J.
WE CONCUR:
AARON, J.
IRION, J.
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