Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV078386.
RUSHING, P.J.
I. Introduction
In the trial court plaintiffs requested attorney fees of $246,442.50 pursuant to Code of Civil Procedure section 1021.5 after obtaining a writ of mandate ordering a city and a developer to comply with environmental laws applicable to proposed projects. The trial court awarded $175,000 jointly against the city and developer. In this appeal the developer argues that no fees should have been awarded because the plaintiffs were not successful and did not confer a significant public benefit or, alternatively, that the award is excessive in several respects. After the developer filed a notice of this appeal, the plaintiffs obtained a discretionary court order that the developer post an undertaking of $87,500. Developer filed a second appeal questioning this order, which this court has ordered to be considered together for purposes of oral argument and disposition. For the reasons stated below, we will affirm both orders, finding no abuse of discretion.
Plaintiffs’ brief asserts that they requested fees totaling $254,638.49. This total appears to include as fees some costs, as explained more fully below in footnote 4 on page 6. Our figure reflects only the fees requested by plaintiffs.
Unspecified section references are to the Code of Civil Procedure.
II. Procedural History
On October 31, 2006, defendant City of Palo Alto circulated a mitigated negative declaration (MND) describing a mixed-use development proposal by real party in interest Court House Plaza Company (Developer) for three parcels on 2.41 acres adjacent to the Caltrain railroad tracks at the intersection of Page Mill Road and Park Boulevard in Palo Alto. We have taken judicial notice of this MND.
The MND described a project involving construction of a three-story building with a subterranean garage for 274 vehicle spaces, a ground floor with space for research and development, and the remaining two stories for residential apartments.
The MND referenced a geotechnical report by Jo Crosby and Associates that identified no toxic material on the property, though it noted the existence, since 1981, of a toxic plume (the Hewlett-Packard-Varian plume) of contaminated groundwater underneath the site. The MND stated, “The extent of the plume and its contaminants are well known and documented, and a number of developments have been built in the area, including residential uses, over this plume.” As mitigation measure #3, the MND proposed that prior to issuance of a building or grading permit, “reports documenting the location of hazardous waste contaminants in the soil and/or groundwater shall be provided to the SCVWD and RWQCB for review and project approval.” It would be up to the Regional Water Quality Control Board (Regional Board) either to confirm the absence of contamination or the absence of dangers to workers or the public from contamination or to review and approve measures to mitigate the danger of exposure.
The Regional Board responded by a letter dated November 20, 2006, of which we have taken judicial notice. The letter pointed out that an August 2006 soil gas survey by Kleinfelder Associates indicated the presence of volatile organic compounds (VOC’s), including PCE, TCE, and benzene, “in the soil gas phase sequestered in the non-saturated zone beneath the site” at concentrations exceeding the Regional Board’s environmental screening levels. “Without further mitigation or mitigation proposals, we conclude the VOC’s beneath the site may present a threat to human health, due to the potential for vapor intrusion into indoor air.” The Regional Board recommended developing plans to identify the VOC’s in the soil, to address potential vapor intrusion, and to protect the health of construction workers.
Defendant City Council of defendant City of Palo Alto (collectively “City”) approved the MND either at the council’s meeting on November 20, 2006 or its meeting on December 11, 2006.
In the trial court, the parties disagreed about the date of the approval. The date of approval is not relevant to the issues in this appeal.
This lawsuit was filed in January 2007, to challenge this approval. Plaintiffs Robert Moss, Thomas Jordan, and an unincorporated association calling itself Citizens for Upholding Zoning Regulations (collectively “Citizens”) filed a petition for writ of mandate asserting, among other things, procedural and substantive omissions in the preparation of the MND. Among the allegations of the petition were: “CITY failed to identify a new potentially significant adverse impact and to propose measures to mitigate such impact in its Revised MND. CITY received written comments on the MND from the [Regional Board] regarding potentially significant impacts associated with the presence of [VOC’s] beneath the Project Site in the soil gas phase sequestered in the non-saturated zone.” This information, at a minimum required a revision of the MND and its recirculation for public review. Citizens also claimed that an environmental impact report (EIR) was required due to these hazardous materials as well as due to impacts on aesthetics and land use.
Citizens also objected to City’s action as in violation of its general plan and zoning law and based on a misunderstanding of the density bonus statute (Gov. Code, § 65915). Citizens requested declaratory and injunctive relief.
After a hearing on September 10, 2007, on the same date the trial court issued a written order partly granting a writ of mandate. The order explained that Citizens were entitled to assert only one environmental issue that had been raised in the administrative proceedings by the Regional Board, namely the inadequate mitigation by the original MND of volatile organic compounds in the soil beneath the project site. The court observed that “the City added new mitigation measures apparently taken from the [Regional Board’s] letter to the MND as part of its final findings, thereby effectively revising the MND without recirculating it.” The court observed that the proposed mitigation measures may not be adequate and that members of the public may argue that the VOC’s required the preparation of an EIR. The court rejected Citizens’ claim that Government Code section 65916 had been misapplied and concluded that no declaration of future rights was needed. Injunctive relief was also unnecessary in light of the court’s ruling on the CEQA claim.
On October 9, 2007, the trial court entered a judgment issuing a peremptory writ of mandate, ordering City to: “1. Set aside its decision approving and adopting a Mitigated Negative Declaration (‘MND’) for the mixed-use development project proposed at 195 Page Mill Road and 2825, 2865, 2873, 2891 and 2901 Park Boulevard in Palo Alto, California (‘Park Plaza Project’). This approval is remanded to the CITY which is hereby ordered to recirculate the MND in its final form for public comment, or otherwise comply with the California Environmental Quality Act (‘CEQA’). (Public Resources Code §§ 21000 et seq.);
“2. Set aside its Action No. 2006-10 Record of the Council of the City of Palo Alto Land Use Action For 195 Page Mill Road and 2825, 2865, 2873, 2891 and 2901 Park Boulevard: 05PLN-00281 (Court House Plaza Company, Applicant) making findings in connection with its approval of the Park Plaza Project under CEQA. This Action No. 2006-10 is remanded to the CITY for reconsideration.
“3. Set aside in its entirety its decision to approve the Park Plaza Project.
“The CITY, and all of its officers, employees, agents and assigns, are FURTHER ORDERED to suspend and refrain from authorizing any and all demolition, excavation, construction or any other project related activities that could result in any change or alteration to the physical environment until the CITY has reconsidered its approval of the Park Plaza Project and brought it into compliance with the requirements of CEQA.
“IT IS FURTHER ORDERED that Real Party in Interest COURT HOUSE PLAZA COMPANY, and all of its officers, employees, agents and assigns, shall suspend and refrain from conducting any and all demolition, excavation, construction or any other project related activities that could result in any change or alteration to the Park Plaza Project site or its physical environment until the CITY has reconsidered its approval of the Park Plaza Project and brought it into compliance with the requirements of CEQA. To the extent necessary for CEQA compliance, activities required to investigate contamination on the Park Plaza Project site may proceed notwithstanding the prohibitions discussed above.”
On December 14, 2007, Developer filed a motion seeking either enforcement or modification of the writ of mandate, arguing that City has misinterpreted the writ as invalidating the existing project approval, and requiring submission of a new application in order to obtain environmental review. Citizens and City opposed the motion. At a hearing on January 11, 2008, the court denied the motion. We subsequently summarily denied a writ petition challenging this denial.
On January 11, 2008, Citizens filed a motion pursuant to section 1021.5 seeking an award of the fees of seven attorneys, including Lewis Soffer, Stephen Velyvis, and Robin Kennedy, in the Miller Starr Regalia law firm. In a declaration, Soffer totaled the litigation expenses at $6,886.50 and the attorney fees at $200,062.50 based on the hours worked at the regular hourly rates of the seven attorneys involved. The declaration was accompanied by bills itemizing the hours worked and services rendered over the time spanning January 4, 2007 through November 28, 2007.
City and Developer each filed opposition to the motion seeking attorney fees. Citizens’ reply brief filed on February 19, 2008 attached a declaration by Stephen Velyvis identifying additional attorney fees and costs arising between the dates of December 3, 2007 and February 19, 2008. This declaration also explained counsel’s involvement in hearings by the Architectural Review Board and City’s Planning Commission. All the hearings were related to review and approval of the project and counsel monitored the progress of Developer’s applications for demolition and building permits.
The reply brief requested $47,689.49 for the most recent fees and costs. The declaration itself did not state a total, though it attached bills and time details. We are unable to ascertain how this total was computed. The fees for December 2007 work were $10,480.00, with costs of $56.10. The fees for January 2008 were $18,230.00, with costs of $1,254.08. The fees for February 2008 were $17,670.00. By our calculation, this amounts to fees of $46,380.00 and costs of $1,310.18, totaling $47,690.18, 69 cents more than what the reply brief stated. Assuming without checking that Soffer’s declaration accurately totaled the initial fees and costs, we calculate that Citizens requested total fees of $246,442.50 and total costs of $8,196.68.
After a hearing on February 26, 2008, the trial court issued an order granting Citizens “motion for attorneys’ fees and litigation expenses” totaling $175,000 jointly and severally against City and Developer. Developer filed a timely notice of appeal from this order.
On May 2, 2008, Citizens filed a motion to require Developer to furnish security pending appeal in order to obtain a stay of the order. After a hearing on June 20, 2008, the court issued an order stating: “The court is of the opinion that an undertaking is not mandated by Code of Civil Procedure 917.1. The court can, however, require an undertaking in its discretion pursuant to Code of Civil Procedure 917.9 (a). The motion is granted in the amount of $87,500.00.” Developer filed a timely notice of appeal from this order.
III. The Attorneys’ Fee Award
A. The Governing Statutes
In Vasquez v. State of California (2008) 45 Cal.4th 243, the California Supreme Court reviewed principles applicable to awarding attorney fees at pages 250 and 251. “Section 1021.5 authorizes a court to ‘award attorneys’ fees to a successful party... in any action which has resulted in the enforcement of an important right affecting the public interest....’ The Legislature enacted the provision to codify the private attorney general doctrine previously developed by the courts. (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 933, ... (Woodland Hills); cf. Serrano v. Priest (1977) 20 Cal.3d 25, 42-47, ... [approving the doctrine].) The doctrine rests on the recognition that privately initiated lawsuits, while often essential to effectuate important public policies, will as a practical matter frequently be infeasible without some mechanism authorizing courts to award fees. (Graham[ v. DaimlerChrysler Corp. (2004)] 34 Cal.4th 553, 565, ... [(Graham)]; see also Maria P. v. Riles (1987) 43 Cal.3d 1281, 1289, ...) Accordingly, ‘ “the fundamental objective of the doctrine is to encourage suits enforcing important public policies by providing substantial attorney fees to successful litigants in such cases.” ’ (Graham, at p. 565, quoting Maria P. v. Riles, supra, at p. 1289.)
“A court may award attorney fees under section 1021.5 only if the statute’s requirements are satisfied. Thus, a court may award fees only to ‘a successful party’ and only if the action has ‘resulted in the enforcement of an important right affecting the public interest....’ (Ibid.) Three additional conditions must also exist: ‘(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.’ (Ibid.) Section 1021.5 codifies the courts’ ‘traditional equitable discretion’ concerning attorney fees (Woodland Hills, supra, 23 Cal.3d 917, 938), and within the statutory parameters courts retain considerable discretion. ‘[T]he Legislature has assigned responsibility for awarding fees under section 1021.5 “not to automatons..., but to judges expected and instructed to exercise ‘discretion.’ ” ’ (Graham, supra, 34 Cal.4th 553, 575; [citation].) In deciding whether to award fees, the 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 a private attorney general theory.’ (Woodland Hills, at p. 938.) A reviewing court ‘will uphold the trial court’s decision to award attorney fees under section 1021.5, unless the court has abused its discretion.’ (Graham, at p. 578.)”
In order to make determinations about the impact of the underlying litigation and the importance of the rights at stake, it will help to review the function of a MND. A MND is authorized by the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.; “CEQA”) and its implementing guidelines (Cal. Code Regs., tit.14, § 15000 et seq.) in certain situations. CEQA is intended to ensure that public agencies consider and minimize the potential significant environmental impacts of proposed projects offered for their approval. (Pub. Resources Code, §§ 21000, subd. (g); 21001, subds. (f), (g)); 21002.) If a project is not exempt from CEQA, the lead agency must determine “whether an environmental impact report, a negative declaration, or a mitigated negative declaration is required.” (Pub. Resources Code, § 21080.1, subd. (a).) A MND is appropriate “when the initial study has identified potentially significant effects on the environment, but (1) revisions in the project plans or proposals made by, or agreed to by, the applicant before the proposed negative declaration and initial study are released for public review would avoid the effects or mitigate the effects to a point where clearly no significant effect on the environment would occur, and (2) there is no substantial evidence in light of the whole record before the public agency that the project, as revised, may have a significant effect on the environment.” (Pub. Resources Code, § 21064.5.)
Further references to Guidelines are to sections in title 14 of the California Code of Regulations.
As this court explained in Lighthouse Field Beach Rescue v. City of Santa Cruz (2005) 131 Cal.App.4th 1170 on page1181: “The CEQA process requires a period for public review of a proposed negative declaration or mitigated negative declaration. ([Pub. Resources Code, ]§ 21091; Guidelines, § 15073.) The lead agency must consider all comments that are received within the public review period. ([Pub. Resources Code, ]§ 21091, subd. (d)(1).) [¶] ‘The decisionmaking body [of the lead agency] shall adopt the proposed negative declaration... only if it finds on the basis of the whole record before it (including the initial study and any comments received), that there is no substantial evidence that the project will have a significant effect on the environment....’ (Guidelines, § 15074, subd. (b).) ‘Prior to carrying out or approving a project for which a negative declaration has been adopted, the lead agency shall consider the negative declaration together with comments that were received and considered....’ ([Pub. Resources Code, ]§ 21091, subd. (f); see Guidelines, § 15074, subd. (b).)”
When a negative declaration or MND has been substantially revised after public review to include new measures to mitigate a newly identified avoidable significant environmental effect, then the new mitigation measures must be circulated, and the revised MND recirculated, for public review. (Guidelines, § 15073.5, subds. (a), (b); cf. Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1397, 1412.)
Lighthouse Field Beach Rescue v. City of Santa Cruz, supra, 131 Cal.App.4th 1170 went on to state on pages 1181 and 1182: “The lead agency must prepare an EIR if it ‘is presented with a fair argument that a project may have a significant effect on the environment, ’ even where it is also ‘presented with other substantial evidence that the project will not have a significant effect.’ (Guidelines, § 15064, subd. (f)(1); see [Pub. Resources Code, ]§§ 21080, subd. (d), 21082.2, subd. (d), 21151, subd. (a); No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68.) This is because ‘an EIR is the key to environmental protection under CEQA.’ (Id. at p. 75.)”
No public agency may approve a project for which an EIR “has been certified which identifies one or more significant effects on the environment that would occur if the project is approved or carried out” (Pub. Resources Code, § 21081) “unless it finds that changes have been made in the project to avoid these effects, or, if the mitigation measures or alternatives identified in the EIR are not feasible, there are overriding benefits that outweigh the impact on the environment.” (Friends of Sierra Madre v. City of Sierra Madre (2001) 25 Cal.4th 165, 185; cf. Pub. Resources Code, §§ 21002, 21002.1, subd. (c).) In other words, the inability to adequately mitigate environmental effects may result in disapproval of a project.
B. Citizens’ Successfulness
Developer asserts that the trial court erred in classifying Citizens as successful parties. “[Citizens] have failed to obtain their goals. [Citizens’] goal of the litigation was to ensure that the project design approved by the City Council would not be built.” As evidence this was Citizens’ goal, Developer cites its own argument and argument by City’s attorney at the hearing on the motion requesting fees. Their position was that Citizens were not successful because some of their claims were rejected.
This kind of argument has been rejected before. (RiverWatch v. County of San Diego Dept. of Environmental Health (2009) 175 Cal.App.4th 768, 782-783 (RiverWatch) [no abuse of discretion in failing to reduce fee award based on lack of success on numerous issues].) The reasoning of Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173 (Bowman) at pages 177 and 178 is quite apt. “It is well settled that partially successful plaintiffs may recover attorney fees under section 1021.5. (See 1 Manaster & Selmi, Cal. Environmental Law & Land Use Practice (2005) § 13.10(3)(b), pp. 13-18 and cases cited; Pearl, Cal. Attorney Fee Awards (Cont.Ed.Bar 2d ed.2004) § 2.19, pp. 49-50 and cases cited.) ‘ “[A] party need not prevail on every claim presented in an action in order to be considered a successful party within the meaning of the section. [Citations.]” (Wallace v. Consumers Cooperative of Berkeley, Inc. (1985) 170 Cal.App.3d 836, 846, ....) Rather, “when a plaintiff is successful within the meaning of the section, the fact that he or she has prevailed on some claims but not on others is a factor to be considered in determining the amount of the fee awarded.” ’ (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1019.)
“The City’s argument that the Neighbors cannot be considered successful parties because they did not accomplish their ‘primary’ litigation aims is based on language in ‘catalyst’ cases, where the issue is whether a party who has not obtained any judicial relief is nevertheless entitled to fees. (See generally Graham v. DaimlerChrysler Corp., supra, 34 Cal.4th at p. 560, ... [fees can be awarded in that situation if the defendant has changed its behavior as sought in the litigation].) In such cases, ‘an award of attorney fees may be appropriate where “plaintiffs’ lawsuit was a catalyst motivating defendants to provide the primary relief sought.” ’ (Westside Community for Independent Living, Inc. v. Obledo, supra, 33 Cal.3d at p. 353..., italics added and deleted.) This, however, is not a ‘catalyst’ case. The City vacated the original project approval under the compulsion of a court order the Neighbors obtained.
“The ‘successful party’ concept is not as narrow as the City suggests. In order to effectuate the purpose of section 1021.5, courts ‘have taken a broad, pragmatic view of what constitutes a “successful party.” ’ (Graham v. DaimlerChrysler Corp., supra, 34 Cal.4th at p. 565, ....) A ‘successful’ party means a ‘prevailing’ party (id. at p. 570...), and ‘ “ ‘plaintiffs may be considered “prevailing parties” for attorney’s fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.’ ” ’ (Maria P. v. Riles[, supra, ] 43 Cal.3d 1281, 1292..., italics added.)”
Developer asserts that the only impact of this litigation was to delay completion of the project pending recirculation of a revised MND. This appears to be wishful thinking. By the time the trial court awarded attorney fees, it was aware that City had taken the position that Developer would have to resubmit a project application to obtain any environmental review. As indicated above, if City is unable to develop adequate mitigation measures for the volatile organic compounds, an environmental impact report may be required. We find that the trial court did not abuse its discretion in implicitly determining that Citizens succeeded in obtaining compliance with CEQA, even if their interpretation of a density bonus statute, Government Code section 65915, did not prevail.
Although it was not before the trial court at the time it awarded attorney fees, we have taken judicial notice of City’s August 29, 2008 return to the peremptory writ of mandate. City explained that while Developer has demanded recirculation of a revised MND, City has persisted in its interpretation of the writ as completely revoking its project approval, so that Developer must submit a new project application in order to obtain environmental review.
C. The Significance of the Benefit Conferred
Developer argues, “Here, the technical violation of failing to recirculate the revised MND does not affect a large class of persons or the general public, particularly in this case in which the revision merely augmented an existing provision in the properly circulated MND.” “Correction of procedural defects in CEQA’s process does not confer benefits considered significant or widespread for the purposes of CCP § 1021.5.” “No cases have shown that additional public participation by itself constitutes a significant public benefit.”
RiverWatch, supra, 175 Cal.App.4th 768 stated on page 781: “ ‘the “significant benefit” that will justify an attorney fee award need not represent a “tangible” asset or a “concrete” gain but, in some cases, may be recognized simply from the effectuation of a fundamental constitutional or statutory policy.’ (Woodland Hills, supra, 23 Cal.3d at p. 939..., [citation].) ‘The benefit may be conceptual or doctrinal and need not be actual or concrete; further, the effectuation of a statutory or constitutional purpose may be sufficient.’ (Braude v. Automobile Club of Southern California (1986) 178 Cal.App.3d 994, 1011, ...) Thus, successful CEQA actions often lead to fee awards under section 1021.5. (See, e.g., Laurel Heights Improvement Ass’n. v. Regents of the University of California (1988) 47 Cal.3d 376, 427...; Galante Vineyards v. Monterey Peninsula Water Management District (1997) 60 Cal.App.4th 1109, 1125-1128, ...) Moreover, the extent of the public benefit need not be great to justify an attorney fee award. (See, e.g., Protect Our Water v. County of Merced (2005) 130 Cal.App.4th 488, 496..., [significant public benefit where litigation prompted agency to improve methods of creating and managing its CEQA records].) The trial court determines ‘the significance of the benefit, as well as the size of the class receiving benefit, from a realistic assessment, in light of all the pertinent circumstances, of the gains which have resulted in a particular case.’ (Woodland Hills, supra, 23 Cal.3d at pp. 939-940, ...)”
Developer relies primarily on three CEQA cases in support of its argument that correcting a technical, procedural defect in the CEQA process does not necessarily confer a significant or widespread benefit. In each of those cases, the appellate court found no abuse of discretion in the trial court’s denial of attorney fees. (Concerned Citizens of La Habra v. City of La Habra (2005) 131 Cal.App.4th 329, 335 (La Habra); Christward Ministry v. County of San Diego (1993) 13 Cal.App.4th 31, 50 (Christward Ministry); Stevens v. City of Glendale (1981) 125 Cal.App.3d 986, 1000.)
Developer also relies on Grimsley v. Board of Supervisors (1985) 169 Cal.App.3d 960 (Grimsley). In that case, the trial court declined to award attorney fees after issuing a writ ordering a county to reconsider its general plan approval. The appellate court considered “it patent that no important right affecting the public interest had at that point ‘been vindicated.’ ” (Id. at p. 966.) The trial court had found “ ‘that plaintiff’s success did not result in the enforcement of an important public right but alerted the Board of Supervisors to a procedural necessity in the adoption of an important public document.’ (The ‘flawed procedure’ found by the court was the failure to approve its revised general plan as required by the Government Code.)” (Id. at p. 965.)
In the La Habra case, the trial court concluded that a MND prepared by a city failed to reflect adequate mitigation for traffic cutting through adjacent neighborhoods to shop at a proposed retail warehouse facility. (La Habra, supra, 131 Cal.App.4th 329, 332.) The court ordered the city to reconsider its MND, but found that it amounted to a “ ‘minute, ’ ” “ ‘tiny’ ” “ ‘blemish’ ” in the city’s CEQA compliance. (Id. at p. 333.) “[T]he trial court assessed the circumstances of the case and determined the gains obtained by CCLH did not confer a significant benefit on a large class of people. Having heard the evidence in support of CCLH’s challenges to the MND, it rejected all of the claimed defects except one. The trial court agreed the MND did not adequately support the conclusion that the effects of cut-through traffic were mitigated, but it felt the inadequacy was a ‘minute blemish’ that could be repaired.... CCLH 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.)
The appellate court found no prejudicial abuse of discretion (La Habra, supra, 131 Cal.App.4th at p. 336), applying the principles that it is up to the trial court to realistically determine the significance of the benefit conferred (id. at pp. 334-335) and that “[t]his determination is ‘best decided by the trial court, and the trial court’s judgment on this issue must not be disturbed on appeal “unless the appellate court is convinced that it is clearly wrong and constitutes an abuse of discretion.” [Citations.]’ [Citation.]” (Id. at p. 334.)
While otherwise relying on La Habra, Developer argues for application of a different standard of review in this case. Developer relies on the following discussion from this court’s opinion in Roybal v. Governing Bd. of Salinas City Elementary School Dist. (2008) 159 Cal.App.4th 1143 at page 1148 (Roybal).
In light of the breadth of the trial court’s discretion on this issue, we would not be surprised if the appellate court in La Habra, applying the same principles of review, would have upheld an award of attorney fees had one been made. La Habra does not establish that no omission in approval of a MND could ever have a significant impact on the general public or a large number of citizens.
Christward Ministry, supra, 13 Cal.App.4th 31 similarly recognized the broad scope of the trial court’s discretion, which “ ‘will be reversed only if there has been a prejudicial abuse of discretion. “ ‘To be entitled to relief on appeal... it must clearly appear that the injury resulting from such a wrong is sufficiently grave to amount to a manifest miscarriage of justice.’ ” ’ ” (Id. at p. 49.) In that case, a neighbor challenged the adequacy of an EIR approving the planned vertical and horizontal expansion of an adjoining landfill. (Id. at p. 36.) In denying attorney fees after issuing a writ of mandate, the trial court observed that the plaintiff’s private interest was being vindicated. (Id. at p. 49.)
The appellate court observed: “Here, the benefits of the case were the judgment’s requirements the County revise the water impacts section of the EIR and add certain information to the mitigation monitoring program concerning the responsible agent for enforcement in order to make both aspects comply with CEQA. Christward’s additional challenges to the EIR were not successful. Before the hearing in this case, County already was under notice from the regional water quality control board that it must prepare a more detailed analysis of the water impacts of the proposed Landfill expansion. Thus, it was reasonable to conclude Christward’s success in obtaining the judgment with respect to the water impacts did not itself confer a public benefit. It also was reasonable to view the requirement of the judgment that the responsible enforcement agent be identified as not significant within the meaning of private attorney general attorney fees statute. Moreover, we cannot quarrel with the reasonableness of the court’s assessment of Christward’s private interest in the litigation.” (Christward Ministry, supra, 13 Cal.App.4th at p. 50.)
In Christward Ministry, the trial court observed that the plaintiff’s individual property interests as a neighbor of the expanding landfill justified it bearing its own attorney fees. As Citizens point out, they have “no personal, property or other financial interest here, ” and Developer does not contradict this. We will analyze another aspect of Christward Ministry below (infra, p. 19).
In Stevens v. City of Glendale, supra, 125 Cal.App.3d 986, the trial court required the public agency to recirculate an EIR in light of proposed substantial revisions (id. at p. 999), while declining to award attorney fees. The appellate court explained: “The award for attorneys’ fees is for a decision which results in the enforcement of an important right affecting the public interest. The appellants asserted in their petition violations of what could be deemed ‘important’ rights; however, they prevailed only on a technical point of lack of public notice on the final EIR. Further, appellants did not present adequate evidence that a public interest was affected. The affected parties were adjoining neighbors. The appellants did receive adequate notice of the revised tentative tract map which included the proposed extension of ‘A’ Street. An adjudication was made by the trial court on the issues of the important rights contrary to appellants’ requests.” (Id. at p. 1000.)
Stevens v. City of Glendale curiously denigrated as an unimportant, “technical point” the “lack of public notice on the final EIR.” (Stevens v. City of Glendale, supra, 125 Cal.App.3d at p. 1000 .) The California Supreme Court considered a similar omission to have greater importance in Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929. In that case, the scope of the project, construction of an amphitheater, changed after the EIR was approved without preparation of a subsequent or supplemental EIR. The Supreme Court observed on page 938 that this omission “deprived plaintiffs and the public of the opportunity to participate in the evaluation of the environmental effects of the project as finally approved. CEQA stresses the need for such participation. It provides for public notification that an EIR is in preparation, or that the agency has decided that a project will not have a substantial effect on the environment and will not require an EIR. ([Pub. Resources Code, ] § 21092.) The completed report is available for public inspection. ([Pub. Resources Code, ] §§ 21105, 21108, subd. (c).) Public notification serves the public’s right ‘to be informed in such a way that it can intelligently weigh the environmental consequences of any contemplated action and have an appropriate voice in the formulation of any decision.’ (Karlson v. City of Camarillo (1980) 100 Cal.App.3d 789, 804, ...) This public participation assists the agency in weighing mitigation measures and alternatives to a proposed project. ([Pub. Resources Code, ] §§ 21100, 21151.)”
Earlier in Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn., supra, 42 Cal.3d 929, the Supreme Court stated on page 935: “ ‘Public participation is an essential part of the CEQA process’ ([former] Cal.Admin.Code, tit. 14, § 15201), and several CEQA provisions recognize its importance. For example, an agency must provide public notice that it is preparing an EIR or a negative declaration ([Pub. Resources Code, ] § 21064) before approving a project, although individuals need not be given notice unless they have previously requested it. ([Pub. Resources Code, ] § 21092.) [fn. omitted] In addition, the state CEQA Guidelines provide for a period of public review for a draft EIR or for a negative declaration. ([Former] Cal.Admin.Code, tit. 14, §§ 15073, 15087.)” (Fn. omitted.)
In light of the California Supreme Court’s recognition of the importance of public notice and participation to CEQA’s project review process, we cannot subscribe to a characterization of an omission to provide public notice and an opportunity for review as an unimportant “technical” or “procedural” defect. Rather, we agree with the following rejection of such a contention by Bowman, supra, 131 Cal.App.4th 173 at pages 180 and 181.
“The City’s contention that additional notice to the Neighbors was the only benefit that resulted from the due process litigation is belied by the record of what occurred after the matter was returned to the City. The remand resulted in a great deal of additional public input on the project, including substantial new written submissions, and oral statements to the city council, from city staff as well as proponents and opponents of the project.... [¶] The court thus reasonably rejected the City’s ‘narrow characterization’ of the impact of the remand. A significant benefit was likewise found in Schwartz v. Rosemead (1984) 155 Cal.App.3d 547, 558..., where a CEQA action ‘secured the opportunity for a large number of fellow residents and affected property owners to voice their concerns and objections, ’ and ‘permitted a large class of persons to contribute their input towards the City’s ultimate decision.’ It was no abuse of discretion for the court to find that the Neighbors’ due process litigation conferred a significant public benefit.”
We also find guidance in RiverWatch, supra, 175 Cal.App.4th 768, where the court concluded, “The significant benefit criterion is satisfied where, as here, the litigation permits affected parties to provide additional input on remand-in this case, to voice their concerns about environmental impacts on water sources, traffic and mitigation plans involving open space. (Bowman, supra, 131 Cal.App.4th at p. 180, ...) The court did not abuse its discretion in finding that the litigation conferred ‘a significant benefit to the environment and thus to the public at large.’ ” (Id. at p. 782.)
Bowman and RiverWatch belie Developer’s assertion that a benefit cannot be found significant unless “the benefit affects persons statewide.” Considering the size of the state of California, we recognize that a large class of persons may be benefited without the benefit being statewide.
The trial court in our case implicitly determined that it conferred a significant benefit on a large class of persons to require public notice and allow for public discussion of how to mitigate the possible dangers of construction on soil contaminated with volatile organic compounds. We find that this determination was not an abuse of the trial court’s broad discretion. Our conclusion is based on the circumstances of this case. We do not intend to imply that implementation of every statutory right to public notice in CEQA will always significantly benefit a large class of persons.
At the hearing on the request for attorney fees, Developer’s counsel asserted, “This case is not going to leave one additional redwood tree standing or prevent the polar bears from going into extinction.” The court responded, “Might have some health implications based on ground water though.” “I mean, if you’re going to tee it up on environmental factors, that is something that could be said that the court did focus its attention on.”
Apart from questioning the significance of the benefit conferred, Developer asserts that Citizens were not responsible for conferring it. Citizens “themselves never raised the CEQA issue – only the trial court did on its own.” This contention is factually unsupported, as our above quotation from Citizens’ complaint demonstrates. (Ante, at p. 4.)
Developer contends, “Furthermore, litigating a case in which the agency has already been apprised of the violation by a public agency prior to the litigation does not confer a public benefit.” For legal support, Developer relies on the above-quoted passage in Christward Ministry (ante, on p. 16) observing that the plaintiff’s litigation did not confer a public benefit because, “[b]efore the hearing in this case, [the] County already was under notice from the regional water quality control board that it must prepare a more detailed analysis of the water impacts of the proposed Landfill expansion.” (Christward Ministry, supra, 13 Cal.App.4th 31, 50; italics added.)
Having studied this passage and opinion closely, we find it inscrutable. We cannot tell if “the hearing” was a hearing in the appellate court, in the trial court, or by the county. There is no prior description of how or when the county received a notice by the water board. Apparently neither the trial court nor the appellate court regarded the water board’s notice as compelling the county to prepare a supplemental EIR, because the trial court ordered the county to revise its EIR. (Christward Ministry, supra, 13 Cal.App.4th at pp. 38-39.) It appears to us that it was the lawsuit, not the water board’s notice, that ensured CEQA compliance in Christward Ministry.
Developer also relies on Grimsley, supra, 169 Cal.App.3d 960 for support. In that case, the appellate court simply affirmed a trial court’s denial of attorney fees after ordering compliance with statutory procedures for revising a general plan. The appellate court noted “that the court might reasonably have drawn any one of three inferences from the record, i.e., (1) as claimed by plaintiff Grimsley, that ‘this litigation is the proximate cause of the changes, ’ (2) that the county would in any event, itself have made the revisions, or (3) more likely, that they were made upon the recommendation of the state’s Director of Planning and Research.” (Id. at p. 967.) Since the two latter inferences were supported by the record, the appellate court found no abuse of discretion. Grimsley made no sweeping pronouncement about litigating a case essentially to implement prior recommendations by another public agency.
Protect Our Water v. County of Merced, supra, 130 Cal.App.4th 488, a rare case reversing a trial court’s refusal to award attorney fees in a CEQA action, said the following about the topic of causation at page 495. “For two reasons we disagree with the County that, because POW never complained about the state of the administrative record, there was no causal connection between POW’s lawsuit and the public benefit incurred. (Maria P. v. Riles, supra, 43 Cal.3d at p. 1291, ... [‘Successful party’ status requires a causal connection between the plaintiff’s lawsuit and the relief obtained]; Schmier v. Supreme Court, supra, 96 Cal.App.4th at p. 877, ... [accord]; Planned Parenthood v. Aakhus (1993) 14 Cal.App.4th 162, 171, ... [question is whether underlying action contributed substantially to remedying conditions at which it was directed].) First, POW did complain in its briefs on the prior appeal that it had trouble identifying the County’s findings, even if this was not the core of POW’s contentions. Second, the key in evaluating the success of the litigation is the ultimate impact of the action, not the manner of its resolution. It is ‘not necessary [that] a party have made the particular legal arguments which vindicated the public right affecting the public interest. It is enough that but for the party’s legal action the right would not have been vindicated.’ (Los Angeles Police Protective League v. City of Los Angeles, supra, 188 Cal.App.3d at p. 13, fn. 1, ...; see also In re Head (1986) 42 Cal.3d 223, 228-229, ... [‘How the party achieves the goal of enforcing the right in question is not determinative of the right to an award of attorney fees under § 1021.5. The impact of the litigation is.’].)”
Public Resources Code section 21177 specifically authorizes CEQA litigation to be predicated upon environmental questions raised by any participant in administrative proceedings, as this court recognized in Galante Vineyards v. Monterey Peninsula Water Management Dist., supra, 60 Cal.App.4th 1109, 1118-1119. Contrary to Developer’s contention, the fact that it was the Regional Board and not Citizens who first identified the VOCs problem to the City does not demonstrate that this litigation by Citizens “failed to confer a public benefit.”
In this case, Citizens successfully litigated an environmental concern raised by the Regional Board in the course of administrative review of Developer’s project. We find no abuse of discretion in the trial court’s implicit conclusions that this action by Citizens has resulted in enforcement of the public’s interests in informed participation in reviewing and minimizing the potential environmental impacts of a proposed project, in particular the potential danger to health posed by contaminated soil.
D. The Necessity of Private Enforcement
Relying again on Grimsley, supra, 169 Cal.App.3d 960, Developer asserts that Citizens “should not be entitled to attorney fees under C. C. P. § 1021.5 unless [Challengers] have reasonably endeavored to enforce an important right affecting the public interest without litigation, and its attendant expense.”
After the opening briefs were filed in this appeal, the California Supreme Court thoroughly analyzed and rejected such a settlement attempt requirement for awarding attorney fees, unless the plaintiff has claimed to be a mere catalyst for enforcing an important right. (Vasquez v. State of California, supra, 45 Cal.4th 243, 251-259.) Without reiterating the court’s entire analysis, we emphasize the following points. Nothing in the statute itself or its history imposes a presuit demand requirement. (Id. at pp. 251-253.) The Supreme Court did impose such a requirement in Graham, supra, 34 Cal.4th 553, “but only in catalyst cases.” (Id. at p. 253.) Nothing in Graham suggested “that the plaintiff in a noncatalyst case must make a prelitigation settlement demand in order to preserve the right to recover fees under section 1021.5.” (Id. at p. 254.)
“The State argues that a 1985 lower court decision, Grimsley v. Board of Supervisors, supra, 169 Cal.App.3d 960, ... (Grimsley), established the general rule that no plaintiff may ever recover fees under section 1021.5 without having attempted to settle before resorting to litigation, and that 19 years later in Graham we merely ‘applied the holding of Grimsley to catalyst cases.’ Nothing in Graham, supra, 34 Cal.4th 553..., however, suggests we believed that a generally applicable demand requirement existed or that we were merely applying a generally applicable requirement to catalyst cases. Instead, in announcing the demand requirement we described it as a ‘limitation on the catalyst rule.’ (Id., at p. 577..., italics added; see also id., at p. 575, ... [‘limitation[ ] on the catalyst theory’].) Nor did we discuss Grimsley in our opinion; we cited the case without comment in describing the Attorney General’s suggestion that we adopt a demand requirement in catalyst cases. (Graham, at p. 577, ...)” (Vasquez v. State of California, supra, 45 Cal.4th 243, 256.)
The Supreme Court reviewed the reasoning of Grimsley, including its “holding that ‘attorney fees under... section 1021.5, will not be awarded unless the plaintiff seeking such fees had reasonably endeavored to enforce the “important right affecting the public interest, ” without litigation and its attendant expense.’ ” (Vasquez v. State of California, supra, 45 Cal.4th at pp. 256-257.) The court then observed: “As we have explained, section 1021.5 does not require prelitigation settlement demands in noncatalyst cases. To the extent Grimsley, supra, 169 Cal.App.3d 960..., might be read to interpret the statute differently, the decision would be incorrect. No opinion published in the 19 years between Grimsley and Graham, supra, 34 Cal.4th 553..., however, cites Grimsley as authority for denying a motion for attorney fees under section 1021.5 on the ground that the plaintiff failed to make a prelitigation settlement demand. Only one decision published before Graham even cites Grimsley on this point, and the court in that case declined to rely on Grimsley as a basis for withholding fees. (Phipps v. Saddleback Valley Unified School Dist. (1988) 204 Cal.App.3d 1110, 1123, fn. 9....) [¶] Grimsley, supra, 169 Cal.App.3d 960..., does usefully illustrate the narrower principle that a court, in exercising its equitable discretion concerning attorney fees under section 1021.5, properly takes into consideration whether the party seeking fees attempted to resolve its dispute before resorting to litigation.” (Vasquez v. State of California, supra, 45 Cal.4th at p. 257.)
The presence or absence of settlement efforts is one of the relevant circumstances for the trial court to consider in evaluating the necessity of private enforcement of the rights established, but it is not a prerequisite for a fee award. (Vasquez v. State of California, supra, 45 Cal.4th at pp. 258-259.) Developer fails to establish that the trial court abused its discretion in evaluating this circumstance in this case.
E. The Amount of the Award
Developer also challenges several presumed components of the trial court’s award.
1. Inclusion of Costs in the Fee Award
Developer correctly argues that section 1021.5 does not authorize recovery of litigation costs such as photocopying, messenger services, and postage not recoverable as statutory costs under section 1033.5.
In the trial court, Citizens’ requests included $8,196.68 for expenses such as photocopying and messenger services. At the time of the hearing in the trial court, Citizens’ attorney advised that the issue of the recoverability of expert witness fees under section 1021.5 was pending in the California Supreme Court. The trial court stated, “I don’t think I’ll put money on the bank on” counsel’s prediction that the high court would find such expenses to be recoverable. The Supreme Court has subsequently determined that “The plain language of section 1021.5 simply does not support plaintiffs’ position that section 1021.5 permits an award of expert witness fees.” (Olson v. Automobile Club of Southern California (2008) 42 Cal.4th 1142, 1156.)
Developer is right about the law, but the above exchange indicates that the trial court was not inclined to make an award of such expenses, as Citizens point out. Developer responds, “Because of the failure of the trial court to explain the reduction in the award of attorneys’ fees and costs, [Developer] cannot assume that the trial court had subtracted all costs unrelated to C. C. P. § 1033.5.”
This court recently stated: “The absence of an explanation of a ruling may make it more difficult for an appellate court to uphold it as reasonable, but we will not presume error based on such an omission. As reiterated in Ketchum, supra, 24 Cal.4th 1122 at page 1140...: ‘ “All intendments and presumptions are indulged to support [the judgment] on matters as to which the record is silent, and error must be affirmatively shown.” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, ...)’ In the absence of evidence to the contrary, we presume that the trial court considered the relevant factors. [Citation.] In awarding attorney fees in a lesser amount than requested, trial courts are not required to specify each and every claimed item found to be unsupported or unreasonable. [Citation.]” (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 67.)
We consider it most reasonable to construe the trial court’s remarks at the hearing as indicating a disinclination to make a speculative award of nonstatutory costs under section 1021.5. Developer has failed to demonstrate that the trial court erred by including such costs in the award made.
2. Reduction for Limited Success
Hearkening back to its contention that Citizens were not successful, Developer asserts that “the trial court should take into consideration the limited success achieved by” Citizens. Citizens “failed on their principal claim that the granting of two concessions under Government Code section 65915 violated the City’s zoning ordinances.”
Hogar v. Community Development Com. of City of Escondido (2007) 157 Cal.App.4th 1358 reviewed the applicable principles at page 1369. “ ‘Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally, this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified. In these circumstances the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised on the lawsuit.’ (Hensley v. Eckerhart (1983) 461 U.S. 424, 435-436....)
“The principle that attorney fees should not be reduced solely because a litigant did not succeed on all claims or theories is based on the practical reality that ‘it is impossible for an attorney to determine before starting work on a potentially meritorious legal theory whether it will or will not be accepted by a court years later following litigation. It must be remembered that an award of attorneys’ fees is not a gift. It is just compensation for expenses actually incurred in vindicating a public right. To reduce the attorneys’ fees of a successful party because he did not prevail on all his arguments, makes it the attorney, and not the defendant, who pays the cost of enforcing that public right.’ (Sundance v. Municipal Court (1987) 192 Cal.App.3d 268, 273....)
“It is only when a plaintiff has achieved limited success or has failed with respect to distinct and unrelated claims, that a reduction from the lodestar is appropriate. (Sokolow v. County of San Mateo (1989) 213 Cal.App.3d 231, 250....) However, ‘[w]here a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his [or her] attorney’s fee reduced simply because the [trial] court did not adopt each contention raised.’ (Hensley v. Eckerhart, supra, 461 U.S. at p. 440....)”
In our case, the award of attorney fees of $175,000 was 71 per cent of the fees of $246,442.50 requested and documented by Citizens. On appeal, developer does not suggest any particular percentage greater than 29 by which the award should have been reduced, nor does Developer attempt to calculate how much of the fees were attributable to unsuccessful claims. Developer simply asks that the fees be “greatly reduced.”
Understandably, there is no precedent establishing a mathematical formula for reducing a lodestar amount by the ratio of successful to unsuccessful contentions. Any such attempt to quantify the success of advocacy by merely counting the number of prevailing contentions in a lawsuit would fail to account for the quality and impact of key points. (Cf. RiverWatch, supra, 175 Cal.App.4th 768, 783.) One might as well attempt to determine the worthiness of briefing (or appellate opinions) by counting the footnotes or pages employed and ignoring the merits of the reasoning.
In the trial court, in opposing the request for fees, City did count the pages of Citizens’ briefing to demonstrate how much attention they devoted to the unsuccessful density bonus claim involving Government Code section 65915. Developer instead argued that “at least two-thirds of the billings identify services in connection with the Government Code section 65915 issues.”
Developer demonstrates no abuse of discretion in the trial court reducing the award by 29 percent from the amount sought. Such a reduction would seem to reflect that Citizens failed to prevail on a claim unrelated to their CEQA contentions. We do not accept Developer’s assertion that this was Citizen’s “principal” claim.
3. Fees for Unrelated Services
Developer further contends that Citizens’ attorneys should not be compensated “for review and analysis of an unrelated EIR for a City public services building project on January 2, 2008” (a charge of $1,400.00), and for “costs for City administrative proceedings before the [Architectural Review Board] and the Planning Commission.”
In the trial court, Developer argued in writing that there were 42 “entries extending from February 9, 2007 to September 19, 2007 which include recitations with respect to the City’s ARB and Planning Commission proceedings which total $22,947.00. Although some of those forty two entries include references to ancillary matters, it is believed that at least $20,000 in legal fees are involved with respect to non-relevant administrative proceedings.”
Ciani v. San Diego Trust & Savings Bank (1994) 25 Cal.App.4th 563 reviewed relevant precedent at pages 574 and 575. “[E]ven though a common factual core is shared by both a lawsuit and a collateral administrative proceeding, this commonality does not automatically require the court to treat the ‘benefits’ from the administrative action as benefits created by the ‘action.’ (Californians for Responsible Toxics Management v. Kizer (1989) 211 Cal.App.3d 961, 971-972..., hereafter Kizer.) In Kizer, for example, the litigant filed a lawsuit to force the owner of a toxic waste facility to identify and remedy contamination on its site; ultimately, the owner entered a consent decree requiring cleanup. (Id. at p. 965.) Although the Kizer court concluded the litigant was entitled to some fees for the successful lawsuit, it affirmed the trial court’s refusal to award fees incurred in collateral proceedings consisting of hearings before the Water Quality Control Board which resulted in an order requiring the owner to close certain waste ponds, even though one of the goals of the lawsuit was such a closure of ponds. The Kizer court concluded that although the administrative proceedings involved the same parties and subject matter, the litigant still had to show that the time spent before the Water Quality Control Board was ‘reasonably expended on the litigation because it was both useful and necessary and directly contributed to the resolution of the action.’ (Id. at pp. 971-972, italics added.)
“Ciani cites Wallace v. Consumers Cooperative of Berkeley, Inc.[, supra, ] 170 Cal.App.3d 836... to argue that results obtained in an administrative proceeding are to be considered when assessing the ‘benefits’ conferred by a litigant’s lawsuit. However, Wallace stands only for the pedestrian proposition that when a successful lawsuit has conferred the requisite benefit, the court ‘should ordinarily consider only time reasonably spent on the merits of the action, and should not include peripheral activities unless they may be shown to have contributed to the result reached.’ (Id. at p. 847.) In Wallace, for example, the lawsuit sought to invalidate minimum price guidelines for milk. The plaintiff settled the lawsuit by agreeing that it would be dismissed as moot if the state held administrative hearings and suspended the minimum prices by a certain date. The state held the hearings and suspended the price guidelines by the target date. The plaintiffs then sought attorney fees. (Id. at pp. 841-842.) The court held that the fees for time spent during these stipulated administrative hearings were recoverable because ‘... those proceedings were in effect part of [the lawsuit] because of the terms of the settlement agreement.... [¶]... Given the terms of the [settlement], it is also apparent that the legal services performed in those proceedings were both useful and necessary to the ultimate resolution of the action, and directly contributed to that resolution.’ (Id. at pp. 848-849.) [¶] Thus, Wallace held only that administrative activities are not automatically ignored, and may be considered part of the litigation where such activities directly contribute to resolution of the action.”
On appeal, Citizens assert that it was a factual question for the trial court to determine “the degree to which those administrative hearings were related to the issues raised in the mandate action.”
We agree that the trial court was in the best position to determine the extent to which, if at all, Citizens’ participation in administrative hearings could be said to have contributed to the result of the litigation. Here, the trial court essentially disallowed $71,442.50 of the fees requested and documented by Citizens. On appeal, Developer appears to be arguing that Citizens should not have been awarded $21,400 attributable to unrelated proceedings. While the trial court did not expressly disallow any particular fee requests, it is arguable that Developer actually succeeded in this argument and also in obtaining an additional fee reduction of around $50,000 due to Citizens’ limited success in their other contentions. Developer has not established either that the trial court actually awarded any fees for collateral proceedings or that it was an abuse of discretion if the court did so.
F. Apportionment of the Award
Developer argues that the trial court erred by failing to apportion a greater percentage than half of the fees to City. After all, “[i]t is the City’s responsibility and duty to comply with the requirements of CEQA.” It was City that added new mitigation measures to the MND without recirculating it. Developer was not involved in preparing any CEQA documents.
In Gorman v. Tassajara Development Corp., supra, 178 Cal.App.4th 44, this court stated at pages 97 and 98: “California law has recognized, in different contexts, that trial courts have discretion not only in setting the amount of an award of attorney fees, but in allocating the award among various defendants based on their relative culpability. (No Oil, Inc. v. Occidental Petroleum Corp. (1975) 50 Cal.App.3d 8, 28-29... [enforcing California Coastal Zone Conservation Act]; see Californians for Responsible Toxics Management v. Kizer[, supra, ] 211 Cal.App.3d 961, 966... [fees under § 1021.5]; Sokolow v. County of San Mateo[, supra, ] 213 Cal.App.3d 231, 250-251... [same].) Washburn v. City of Berkeley (1987) 195 Cal.App.3d 578... noted on page 592...: ‘federal courts have adopted various methods of apportioning or allocating fees among defendants in cases involving fee awards pursuant to 42 United States Code section 1988, and this court may look to federal law in applying section 1021.5. In Grendel’s Den, Inc. v. Larkin (1st Cir.1984) 749 F.2d 945 the court instructed, “[A] number of theories for apportioning fees have been advanced.... Among them are the simplest approach of dividing the award equally among the defendants..., and the more sophisticated approaches of apportionment by degree of each defendant’s liability..., and apportionment by relative time spent litigating against each defendant.... Each of these theories may be more or less valid in a given case.” (Id., at pp. 959-960.)’ ”
While City has not appealed from the trial court’s fee award against it, it has filed a brief opposing Developer’s request to assign it a greater share of the fees. City contends that a joint and equal division is consistent with case law and was well within the trial court’s discretion.
Mejia v. City of Los Angeles (2007) 156 Cal.App.4th 151 rejected an argument by a property owner that it should not have been subjected to an attorney fee award because it “was without fault and CEQA compliance was the city’s sole responsibility.” (Id. at p. 159.) The court reasoned in part on page 161: “[A]n award of attorney fees ‘to a successful party against one or more opposing parties’ (Code Civ. Proc., § 1021.5) does not require a finding of fault or misconduct by the opposing party. The statutory language does not contain such a requirement, and courts have recognized that there is no such requirement. (Washburn v. City of Berkeley[, supra, ] 195 Cal.App.3d 578, 588... [‘no finding of fault is required under that statute’]; [San Bernardino Valley] Audubon Society[, Inc. v. County of San Bernardino (1984)] 155 Cal.App.3d [738, ] 756... [(Audubon Society)]; Schmid v. Lovette (1984) 154 Cal.App.3d 466, 475....)
“Audubon Society, supra, 155 Cal.App.3d at page 756... stated: ‘[F]ees granted under the private attorney general theory are not intended to punish those who violate the law but rather to ensure that those who have acted to protect public interest will not be forced to shoulder the cost of litigation. In this case, Gold Mountain was a major party, actively litigating from the inception of the action in order to protect its interests. As the real party in interest, it had the most to gain. When a private party is a real party in interest and actively participates in litigation along with the governmental agency, it is fair for that party to bear half the fees. [Citation.]’ Similarly, Schmid v. Lovette, supra, 154 Cal.App.3d at pages 473-475..., rejected the appellants’ argument that they believed in good faith that they were following the law, and held that there was ‘no “good faith exception” ’ to liability for attorneys fees under section 1021.5.”
Under the above authority, the trial court may have been justified in apportioning fee liability in accordance with its perception of how much Developer and City each contributed to the CEQA omission necessitating a writ of mandate. In this attempt, the trial court might have taken into account whether Developer was responsible in some way, either for insisting on rapid approval of its project or for withholding information requested by City. However, precedent did not require the trial court to assign blame or to consider such potential contentions. The evidence that Developer actively participated in the litigation and resisted Citizens’ petition is enough to justify a joint award of Citizens’ attorney fees. We conclude that Developer has not established any abuse of discretion in making the fee award a joint and several obligation.
IV. Security Pending Appeal
Developer has filed a separate appeal from the trial court’s order requiring it to post an undertaking of $87,500 in order to stay the attorney fee award pending appeal.
Section 917.9 provides in pertinent part: “(a) The perfecting of an appeal shall not stay enforcement of the judgment or order in cases not provided for in Sections 917.1 to 917.8, inclusive, if the trial court, in its discretion, requires an undertaking and the undertaking is not given, in any of the following cases:
“[¶]... [¶]
“(2) Appellant is required to perform an act for respondent’s benefit pursuant to judgment or order under appeal.
“(3) The judgment against appellant is solely for costs awarded to the respondent by the trial court pursuant to Chapter 6 (commencing with Section 1021) of Title 14.
“(b) The undertaking shall be in a sum fixed by the court and shall be in an amount sufficient to cover all damages which the respondent may sustain by reason of the stay in the enforcement of the judgment or order.
“(c) The undertaking shall be in the sum fixed by the court. The undertaking shall be conditioned upon the performance of the judgment or order appealed from or payment of the sums required by the judgment or order appealed from, if the judgment or order is affirmed or the appeal is withdrawn or dismissed, and it shall provide that if the judgment or order appealed from or any part of it is affirmed, or the appeal is withdrawn or dismissed, the appellant will pay all damages which the respondent may sustain by reason of the stay in the enforcement of the judgment.
“(d) For the purpose of this section, ‘damages’ means either of the following:
“(1) Reasonable compensation for the loss of use of the money or property.
“(2) Payment of the amounts specified in paragraph (3) of subdivision (a).”
Developer acknowledges general principles applicable to appellate review of a trial court determination for an abuse of discretion. As this court stated in a discovery context, “Abuse of discretion is a deferential standard of review. [Citation.] Under this standard, a trial court’s ruling ‘will be sustained on review unless it falls outside the bounds of reason.’ [Citation.] We could therefore disagree with the trial court’s conclusion, but if the trial court’s conclusion was a reasonable exercise of its discretion, we are not free to substitute our discretion for that of the trial court.” (Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 881-882.)
Developer nevertheless argues that the trial court abused its discretion by ordering an undertaking “absent a sufficient showing that [Citizens] would be prejudiced without an undertaking.”
Developer’s implicit premise that an undertaking may be ordered only when necessary to avoid prejudice, and not when merely desirable, finds no support in case law or the statute. The intent of the statute is obvious. While it provides appellants with a means of staying judgments and orders not otherwise subject to statutory stay pending appeal, it also guarantees an unsuccessful appellant’s eventual performance of the commands of the appealed judgment or order, and protects the respondent from damages resulting while the appealed judgment or order is stayed by the undertaking. (Cf. Estate of Murphy (1971) 16 Cal.App.3d 564, 568 [when there is a risk of loss of benefits during an appeal, “Equity demands that, as between respondent and appellant, the appellant who seeks the stay should assume the risk.”].) It would be inconsistent with this intent to limit the availability of an undertaking only to situations when a respondent can demonstrate inevitable, not merely likely or reasonable possible, prejudice.
On the other hand, an appellant who does not seek a stay of an order commanding an act by the appellant can simply refuse to post the undertaking. (Dayton Time Lock Service, Inc. v. Silent Watchman Corp. (1975) 52 Cal.App.3d 1, 10.)
Developer argues that no undertaking was necessary, because it has “more than a sufficient amount of assets to pay” the attorney fee award and “[t]here is no evidence in the record to show that [Developer] would divest its assets or fail to pay” Citizens if we affirm the fee award.
These points, however, do not establish that it was undesirable to provide Citizens, who have already incurred substantial attorney fees to vindicate the public’s interests, with a ready source of security pending Developer’s appeal. We find no abuse of discretion in requiring Developer to post an undertaking of $87,500, exactly its half of the joint award of $175,000 for attorney fees.
Disposition
The orders awarding attorney fees of $175,000 and requiring an undertaking pending appeal of $87,500 are affirmed. Citizens are to recover costs on appeal.
WE CONCUR: PREMO, J., ELIA, J.
Section 1021.5 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.”
As Grimsley did not involve enforcement of CEQA rights to public notice and participation, we find it unilluminating about the importance of such rights.
“Trial court decisions on attorney-fee requests under section 1021.5 have traditionally been reviewed deferentially and upheld absent a prejudicial abuse of discretion. (See, e.g., Baggett v. Gates, supra, 32 Cal.3d at pp. 142-143...; Galante Vineyards v. Monterey Peninsula Water Management Dist.[, supra, ] 60 Cal.App.4th 1109, 1125....) Our Supreme Court recently clarified, however, that the proper standard of review depends on the extent to which there were issues of fact below. If the issue is whether the criteria for an award of attorney fees and costs in this context have been satisfied, ‘this may be a mixed question of law and fact and, if factual questions predominate, may warrant a deferential standard of review.’ (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175....) If, on the other hand, the underlying facts are largely undisputed and the issue calls for statutory construction, it is a question of law that is reviewed de novo. (Id. at pp. 1175-1176....)”
After making those observations, Roybal stated that the application of section 1021.5 in the case before it involved “mixed questions of fact and law.” (Roybal, supra, 159 Cal.App.4th at p. 1148 .) As will appear from our following analysis, we disagree with Developer’s assertion that the facts relevant to applying this statute are undisputed in this case.