Opinion
No. B208066
4-22-2009
STEVEN A. LOPATE, Plaintiff and Appellant, v. CITY OF EL PASO DE ROBLES, Defendant and Respondent.
Law Offices of Michael R. Jencks and Michael R. Jencks for Plaintiff and Appellant. McDonough Holland & Allen PC, Iris P. Yang and Kara K. Ueda for Defendant and Respondent.
Not to be Published in the Official Reports
Steven A. Lopate appeals from an order denying his request for attorney fees under Code of Civil Procedure section 1021.5. We affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On September 18, 2007, respondent City of El Paso de Robles (City) approved a general plan amendment, a planned development permit and a conditional use permit for development of a 125-unit senior retirement community and expansion of a church. The project was on an 11.8-acre parcel adjacent to residential property owned and occupied by appellant Steven A. Lopate. Before approving the project, the City conducted an environmental review and adopted a mitigated negative declaration under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.).
On November 2, 2007, Lopate filed a petition for writ of mandate challenging the project on the ground that the City violated CEQA by adopting a mitigated negative declaration for the project rather than an environmental impact report.
On November 14, 2007, the projects developer notified the City it would not be going forward with the project as approved and would be submitting an application for a revised project. On December 4, 2007, the City rescinded its approvals of the project. On January 3, 2008, Lopate filed a request for dismissal of his lawsuit.
Subsequently, Lopate filed a memorandum of costs in the amount of $645 and a motion requesting attorney fees in the amount of $25,833.25, pursuant to the private attorney general statute, section 1021.5. The City opposed the motion for attorney fees asserting Lopate was not a successful party, the costs of litigation did not transcend his personal interest, and the lawsuit did not confer a significant benefit on the general public or a large class of persons.
After hearing, the trial court denied the motion on the ground that the cost of litigation did not transcend Lopates personal stake in the lawsuit.
On appeal, Lopate contends he has met all three elements of the test for recovery of fees under section 1021.5. The City contends Lopate has not met his burden of showing entitlement under any of the prongs of the test.
DISCUSSION
The American rule that each party pay his own attorney fees (§ 1021), is subject to several exceptions. One of the most important of these is the private attorney general doctrine, codified in section 1021.5. That section permits an award of attorney fees to a successful party if the party shows that the litigation "(1) served to vindicate an important public right; (2) conferred a significant benefit on the general public or a large class of persons; and (3) imposed a financial burden on plaintiffs which was out of proportion to their individual stake in the matter." (Baggett v. Gates (1982) 32 Cal.3d 128, 142.)
Standard of Review
"`Whether a party has met the requirements for an award of fees. . . [is a question] best decided by the trial court in the first instance. [Citations.] That court, utilizing its traditional equitable discretion, must realistically assess the litigation and determine from a practical perspective whether the statutory criteria have been met. [Citation.] Its decision will be reversed only if there has been a prejudicial abuse of discretion. [Citation.] To make such a determination we must review the entire record, paying particular attention to the trial courts stated reasons in denying or awarding fees and whether it applied the proper standards of law in reaching its decision. [Citation.] [Citations.] `The pertinent question is whether the grounds given by the court for its denial of an award are consistent with the substantive law of section 1021.5 and, if so, whether their application to the facts of th[e] case is within the range of discretion conferred upon the trial courts under section 1021.5, read in light of the purposes and policy of the statute." (Marine Forests Society v. California Coastal Com. (2008) 160 Cal.App.4th 867, 876.)
Lopate Has Not Met His Burden of Showing that the Cost of Litigation Transcended His Personal Interest
The trial court based its decision to deny fees on Lopates failure to meet his burden of showing that the cost of litigation transcended his personal interest. We, too, will confine our analysis to that prong of the private attorney general doctrine.
Assuming Lopate satisfied the first two requirements for an award of attorney fees under section 1021.5, he was also required to establish that "the necessity and financial burden of private enforcement . . . are such as to make the award appropriate." (§ 1021.5, subd. (b).) "This statutory element requires that the cost of the litigation to [the claimant] be disproportionate to [the claimants] individual stake in the outcome. [Citation.] This criterion is met when the cost of the claimants legal victory transcends his personal interest in the subject of the suit." (Planned Parenthood v. Aakhus (1993) 14 Cal.App.4th 162, 172-173.)
In finding that Lopate had not met this test, the trial court stated: "[T]he court will focus on Citys contention that even if Petitioner did achieve a victory, the attorneys fees did not transcend his personal interest in the action. In particular, the evidence provided to the court clearly establishes that the dominant reason that Petitioner filed his action was to mitigate the effect of the proposed projects on his view, property value, and other property rights. There is simply no evidence that significant benefit to the public was bestowed by Petitioners opposition to the church expansion and senior living community. Contrary to Petitioners argument, the public always receives a benefit when the law is enforced, but to determine whether the purported public benefit is significant, the court must make a realistic assessment of the size of the class receiving the purported benefit and the significance of the benefit in light of all relevant circumstances (Christward Ministry v. County of San Diego (1993) 13 Cal.App.4th 31)."
The trial court further stated, "Petitioner argues that the action demonstrates `a pattern and practice of ignoring the spirit of CEQA. Petitioner provides insufficient evidence (the Quorum case) to support that pronouncement. In addition, the fact that the applicant actually withdrew the application further weakens the argument, because Petitioner was not actually required to prove alleged deficiencies in the permit process which Petitioner asserts show such a pattern. Unfortunately, admissible evidence establishes that Petitioners main concerns were the effect of the project on his property value and the view from his property. The personal funds that he expended do not transcend his personal stake."
Lopate asserts the trial courts reasoning is flawed because his "successful assertion of a single cause of action for violation of CEQA conferred no potential benefit on appellant different from benefits for his neighbors and a significant number of citizens" and the courts reliance on the purpose of the lawsuit rather than "objective interest" results in applying an unreliable and subjective standard that operates to preclude a fee award to any party with a personal interest in the outcome. We disagree.
Lopates first argument is flawed for several reasons. First, there is nothing in the record showing that his petition alleging violation of CEQA had substantive merit. (See Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 575 [to be a successful party under section 1021.5 a party must show, inter alia, that the lawsuit had merit and achieved its catalytic effect ""by threat of victory," not "by dint of nuisance and threat of expense""].) The record shows only that the developer abandoned the project. The lawsuit did not induce voluntary action on the part of the City to prepare an environmental impact report. (See Westside Community for Independent Living, Inc. v. Obledo (1983) 33 Cal.3d 348, 352-353 [attorney fees may be proper when relief obtained through voluntary change in defendants conduct]; Californians for Responsible Toxics Management v. Kizer (1989) 211 Cal.App.3d 961, 967 [defendants voluntary action induced by plaintiffs lawsuit could support attorney fee award because lawsuit spurred defendant to act or was catalyst in speeding defendants response].) Moreover, there was never a ruling or stipulation that the City failed to comply with CEQA.
In addition, merely because the action is one brought under CEQA does not alleviate the necessity for showing that the cost of the lawsuit exceeds petitioners personal stake. The CEQA statutes safeguard important public rights. (See, e.g., Rich v. City of Benicia (1979) 98 Cal.App.3d 428, 435 ["Unquestionably environmental concerns in general and the statutory policy in favor of use of environmental impact reports in particular involve preeminently important public rights"].) However, the cases make clear that enforcement efforts alone do not justify an attorney fee award. For example, in Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 939-940, our Supreme Court said: "Of course, the public always has a significant interest in seeing that legal strictures are properly enforced and thus, in a real sense, the public always derives a `benefit when illegal private or public conduct is rectified. Both the statutory language (`significant benefit) and prior case law, however, indicate that the Legislature did not intend to authorize an award of attorney fees in every case involving a statutory violation. We believe rather that the Legislature contemplated that in adjudicating a motion for attorney fees under section 1021.5, a trial court would determine 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." Thus, entitlement to attorney fees under section 1021.5 turns "on a comparison of the litigants private interests with the anticipated costs of suit." (California Licensed Foresters Assn. v. State Bd. of Forestry (1994) 30 Cal.App.4th 562, 571.)
In Schwartz v. City of Rosemead (1984) 155 Cal.App.3d 547, the petitioner, like Lopate, filed a CEQA action challenging development on property adjacent to his own. The court determined the petitioner was not entitled to attorney fees even though it had granted him partial relief on his CEQA claims. The court concluded that the cost of litigation was not out of proportion to the petitioners individual stake in the litigation, notwithstanding that the public also benefited from the action. (Id., pp. 550-554.) The Court of Appeal affirmed. The appellate court concluded that the trial courts findings that the petitioner brought the action to protect his own property interests and that the cost of litigation was not out of proportion to the plaintiffs individual stake in the action was supported by substantial evidence. (Id. at pp. 559-560.)
Similarly, in Christward Ministry v. County of San Diego, supra, 13 Cal.App.4th 31, the owner of a retreat adjacent to a landfill petitioned for a writ of mandate challenging the adequacy of an environmental impact report for a planned expansion of the landfill. The trial court granted the petition in part but denied attorney fees, and the Court of Appeal affirmed. The appellate court concluded substantial evidence supported the trial courts conclusion that the petitioners private interests motivated the action even though the public was also benefited. (Id. at pp. 49-50.)
Here, the trial court carefully made the benefit-burden analysis and concluded that Lopate had not met his burden of proof. There is substantial evidence in the record to support that conclusion.
Lopates contention that the court erred in looking at the purpose for which the lawsuit is brought challenges the legality of the criteria for an award of fees established by our Supreme Court. Lopate cites no relevant authority supporting this argument and we deem the argument waived. (People v. Stanley (1995) 10 Cal.4th 764, 793; Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99.) We note, however, that the argument is contrary to the opinions of this court. (See, e.g., Planned Parenthood v. City of Santa Maria (1993) 16 Cal.App.4th 685, 692 ["Section 1021.5 was not designed as a method of rewarding litigants motivated by their own pecuniary interests who only coincidentally protect the public interest . . ."].)
Because Lopate had a sufficient personal stake in the protection of his property interests to pursue the litigation, he is not entitled to an award of attorney fees under the private attorney general doctrine.
The order is affirmed. Respondent shall recover costs on appeal.
We concur:
GILBERT, P.J.
COFFEE, J. --------------- Notes: All further statutory references are to the Code of Civil Procedure unless otherwise stated.