Opinion
F060842
12-28-2011
SANCTUARY MERCED, Plaintiff and Appellant, v. CENTRAL PRESBYTERIAN CHURCH OF MERCED et al., Defendants and Respondents.
Law Offices of Richard L. Harriman and Richard L. Harriman; The Law Office of Kenneth R. Mackie and Kenneth R. Mackie for Plaintiff and Appellant. Mason, Robbins, Browning & Goodwin, Michael L. Mason and Richard T. Marchini for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 150802)
OPINION
APPEAL from a judgment of the Superior Court of Merced County. William E. Burby, Jr., Judge.
Law Offices of Richard L. Harriman and Richard L. Harriman; The Law Office of Kenneth R. Mackie and Kenneth R. Mackie for Plaintiff and Appellant.
Mason, Robbins, Browning & Goodwin, Michael L. Mason and Richard T. Marchini for Defendants and Respondents.
Plaintiff appeals from the denial of its motion for an award of attorney fees under the private attorney general statute. We find no abuse of the trial court's discretion and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On November 16, 2007, plaintiff, Sanctuary Merced, filed its complaint against defendants, Central Presbyterian Church of Merced (CPC) and its governing body, Session. On June 11, 2008, after demurrers to the original and first amended complaint were sustained with leave to amend, plaintiff filed a second amended complaint containing two causes of action: deceit and unfair business practices. Plaintiff alleged CPC and Session made misrepresentations to the church congregation, and those misrepresentations caused the congregation to vote to demolish the church sanctuary, which was built in 1917 and is a unique historical building. Plaintiff sought a preliminary and permanent injunction, enjoining defendants from demolishing the sanctuary building and from engaging in any acts in furtherance of demolition.
On July 11, 2008, defendants demurred to the second amended complaint. On August 4, 2008, while the demurrer was pending, defendants filed a motion for sanctions against plaintiff and its attorney, asserting the second amended complaint was frivolous, was filed to harass and annoy defendants, and lacked any evidentiary support. On August 14, 2008, plaintiff filed a request for dismissal of its complaint without prejudice, and the dismissal was entered. On August 28, 2008, the trial court granted defendants' motion for sanctions, finding the allegations of plaintiff's pleadings lacked evidentiary support; it imposed monetary sanctions against plaintiff's attorney. Plaintiff and its attorney appealed the sanctions order. On December 21, 2009, this court reversed the order, concluding defendants' showing in the trial court was insufficient to justify imposition of sanctions against plaintiff's counsel.
On April 1, 2010, plaintiff filed a motion for attorney fees, seeking to recover its prejudgment attorney fees, as well as attorney fees it incurred in the appeal of the sanctions order and those incurred in preparing and presenting the motion for attorney fees. Plaintiff based its motion on the private attorney general statute (Code Civ. Proc., § 1021.5). It asserted that, because it went before the Merced City Council during the pendency of this action and obtained a designation of the sanctuary building as a historical resource, it obtained the relief sought in this action and was therefore the prevailing party and entitled to an award of statutory attorney fees. It argued that, because of the historical resource designation, CPC could no longer demolish the building without complying with the California Environmental Quality Act (CEQA) and its requirement that an environmental impact report (EIR) be prepared. Defendants opposed the motion, asserting both that it was untimely and that it was without merit because plaintiff was not the successful party under the statute. After hearing, the trial court denied the motion for attorney fees. Plaintiff appeals.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
DISCUSSION
I. Standard of Review
On appeal, the trial court's order is presumed to be correct. (Schnabel v. Superior Court (2003) 5 Cal.4th 704, 718.) "'The burden of affirmatively demonstrating error is on the appellant.'" (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.)
"'Whether a party has met the requirements for an award of fees and the reasonable amount of such an award are questions 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.]'" (Marine Forests Society v. California Coastal Commission (2008) 160 Cal.App.4th 867, 876 (Marine Forests).) "Although 'the decision whether to award attorney fees under section 1021.5 rests initially with the trial court' [citation], the court does not have the discretion to award such fees unless the statutory criteria have been met as a matter of law. Where the material facts are undisputed, and the question is how to apply statutory language to a given factual and procedural context, the reviewing court applies a de novo standard of review to the legal determinations made by the trial court. [Citation.]" (McGuigan v. City of San Diego (2010) 183 Cal.App.4th 610, 622-623 (McGuigan).)
The doctrine of implied findings "requires that in the absence of a statement of decision, an appellate court will presume that the trial court made all factual findings necessary to support the judgment for which substantial evidence exists in the record. In other words, the necessary findings of ultimate facts will be implied and the only issue on appeal is whether the implied findings are supported by substantial evidence." (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 267.) The trial court made no findings of fact in its order denying the motion for attorney fees. Accordingly, we will imply all factual findings necessary to support the order if they are supported by substantial evidence, independently determine whether plaintiff met the statutory criteria for an award of attorney fees, and, if so, review the denial of an award for an abuse of discretion.
II. Merits
Plaintiff's notice of the motion for attorney fees simply stated that plaintiff was seeking "an award of reasonable attorney's fees"; neither the notice nor the supporting memorandum of points and authorities specified the proceedings for which such an award was sought. The billing summaries attached as exhibits to the declarations filed with the motion, however, indicate plaintiff was seeking attorney fees for work done from the outset of the case, through the appeal, and in connection with the fee motion. Because the analysis for prejudgment fees differs from that for appellate fees, we will consider the two separately.
A. Prejudgment Attorney Fees
Rule 3.1702 of the California Rules of Court governs requests for statutory and contractual attorney fees in civil cases. (Cal. Rules of Court, rule 3.1702(a).) Regarding the time for filing a motion for prejudgment attorney fees, rule 3.1702 provides: "A notice of motion to claim attorney's fees for services up to and including the rendition of judgment in the trial court-including attorney's fees on an appeal before the rendition of judgment in the trial court-must be served and filed within the time for filing a notice of appeal under rules 8.104 and 8.108." (Rule 3.1702(b)(1).) Rule 8.104 provides that a notice of appeal must be filed on or before the earliest of: 60 days after the superior court clerk serves a notice of entry of the judgment on the parties, 60 days after a party serves a notice of entry of judgment on the other parties, or 180 days after entry of judgment. (Rule 8.104(a)(1)-(3).) Thus, a motion for an award of attorney fees incurred prior to judgment in the trial court must be filed within 60 days after notice of entry of judgment is served or, if no notice of entry is served, within 180 days after entry of judgment.
All further references to rules are to the California Rules of Court unless otherwise indicated.
The judgment in this case was the dismissal entered pursuant to plaintiff's request on August 14, 2008. The record contains no notice of entry of that dismissal. The time for filing a motion for an award of prejudgment attorney fees expired no later than February 10, 2009, 180 days after the dismissal was entered. The motion was not filed until April 1, 2010. Consequently, it was filed over one year too late.
Plaintiff argues that the motion was timely filed after the decision on appeal, citing Citizens Against Rent Control v. City of Berkeley (1986) 181 Cal.App.3d 213 (Citizens). In Citizens, the plaintiffs filed an action to invalidate a city ordinance; summary judgment declaring the ordinance unconstitutional was entered and the defendants appealed. The court of appeal affirmed; the California Supreme Court reversed. The United States Supreme Court reversed the California Supreme Court's decision and remanded the case to that court. Within 30 days after the California Supreme Court issued its remittitur, the plaintiffs filed in the trial court a motion for an award of attorney fees pursuant to section 1021.5. The trial court granted the motion and defendants appealed, arguing, among other things, that the motion for attorney fees was untimely.
The court concluded the fee request was timely even if first made after the judgment was final, because "section 1021.5 'requires the claimant to show that the principal action "has resulted" in the enforcement of an important right and that a significant benefit "has been conferred"' [citation], [and] that showing often 'cannot be made until the benefit is secure, in some cases after judgment is final.' [Citations.]" (Citizens, supra, 181 Cal.App.3d at pp. 226-227.) In Citizens, the benefits of the litigation were not secure until the United States Supreme Court's decision became final. The court also noted that a section 1021.5 motion was "'subject to no express time limit.'" (Citizens, at p. 227.)
Citizens is readily distinguishable. There, it was reasonable for the plaintiff to await the final outcome of all the appeals addressing the merits of the judgment before requesting attorney fees. In the instant case, judgment was entered pursuant to plaintiff's voluntary dismissal. Generally, no appeal lies from a voluntary dismissal (Yancy v. Fink (1991) 226 Cal.App.3d 1334, 1343), and neither party attempted to appeal that judgment. The outcome of plaintiff's action was secure when the dismissal was entered, or at the very latest when the time to appeal the judgment of dismissal expired. No subsequent act by any court has reviewed or changed the disposition of plaintiff's action on the merits. Thus, there was no reason to delay filing any motion for attorney fees.
Additionally, at the time Citizens was decided, there was no express time for filing a motion for attorney fees pursuant to section 1021.5. Rule 3.1702 now prescribes the time for filing such a motion. Prior to 1994, rule 870.2, the predecessor of rule 3.1702, set the time for filing motions for contractual attorney fees sought as an element of costs under Civil Code section 1717. (Sanabria v. Embrey (2001) 92 Cal.App.4th 422, 427 (Sanabria).) "In 1992, the Supreme Court asked the Administrative Office of the Courts to review the timing of claims for attorney fees under Code of Civil Procedure section 1021.5 (private attorney general fees). The Supreme Court was concerned that case law arguably permitted claims for such fees to be pursued at any time." (Sanabria, supra, at p. 427.) The resulting proposal addressed the procedure for all requests for attorney fees, under statute or contract, and provided that they be filed within the time for filing an appeal. (Id. at pp. 427, 428.) An amended rule 870.2 was adopted. "It is therefore clear that ... rule 870.2 provides time limits for motions for attorney fees in all civil cases, and its 60-day time limit commences to run at notice of entry of judgment or dismissal." (Sanabria, at p. 429.)
In Sanabria, the plaintiff voluntarily dismissed his complaint against the Embreys, leaving a complaint in intervention and a cross-complaint pending. Three months later, judgment was entered on the remaining claims. Within 60 days after notice of entry of that judgment was served, the Embreys filed a motion for attorney fees. The court concluded the motion was untimely because it was not filed within 60 days after notice of entry of the dismissal of the complaint against the Embreys. (Sanabria, supra, 92 Cal.App.4th at p. 426.) The court noted that a voluntary dismissal terminates the action against the dismissed defendants immediately and may entitle them to attorney fees as the prevailing party. (Id. at pp. 425, 427.) Although a voluntary dismissal is generally not appealable, it is effectively a judgment for purposes of the rule prescribing the time for filing a notice of appeal. (Id. at p. 427.) Consequently, the time for filing a motion for attorney fees after a voluntary dismissal was prescribed by rule 870.2, and the Embreys' motion was not timely filed under that rule. (Sanabria, at p. 429.)
Similarly, when plaintiff dismissed its second amended complaint in this case, any party claiming attorney fees had 60 days from the date of notice of entry of the dismissal, or 180 days from the date of entry of the dismissal if no notice was served, within which to file a motion for attorney fees. Plaintiff failed to timely file its motion.
Citing Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553 (Graham), plaintiff argues that attorney fees under section 1021.5 cannot be awarded when the complaint is "'frivolous, unreasonable or groundless'" (Graham, supra, 34 Cal.4th at p. 575), so plaintiff could not establish its entitlement to fees until the sanctions order was reversed on appeal, because that order determined plaintiff's action was frivolous. The trial court's sanction order was made pursuant to section 128.7 and primarily addressed the conduct of plaintiff's attorney. Section 128.7, subdivision (b) provides that, by signing a pleading, an attorney certifies that, "to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances," the pleading "is not being presented primarily for an improper purpose," (§ 128.7, subd. (b)(1)) the claims it contains are warranted by existing law or a nonfrivolous argument for the extension of existing law, and "[t]he allegations and other factual contentions have evidentiary support." (§128.7, subd. (b)(2) & (3).) Sanctions may be imposed on an attorney for violating section 128.7, subdivision (b). (§ 128.7, subd. (c).) The trial court's sanction order was based on a finding that plaintiff "failed to provide allegations or factual contentions based upon evidentiary support." Essentially, the court determined that plaintiff's counsel either did not sufficiently investigate the facts to obtain supporting evidence before he prepared and filed the second amended complaint, or did not draft the second amended complaint so as to include only factual allegations for which he had found supporting evidence,
A trial court faced with a motion for attorney fees under section 1021.5 must determine whether the moving party is entitled to an award under the statutory criteria. When the motion is based on the moving party's claim that it obtained relief other than judicial relief, that determination includes a consideration of whether the lawsuit had merit, that is, whether its result was achieved "'"by threat of victory," not "by dint of nuisance and threat of expense."'" (Graham, supra, 34 Cal.4th at p. 575.) "In order to make this determination, the court is to inquire not into a defendant's subjective belief about the suit but rather to gauge, objectively speaking, whether the lawsuit had merit." (Ibid.) "The determination the trial court must make is not unlike the determination it makes when asked to issue a preliminary injunction, i.e., not a final decision on the merits but a determination at a minimum that '"the questions of law or fact are grave and difficult."' [Citation.]" (Id. at pp. 575-576.)
Although the term "frivolous" is used in some formulations of the test for imposing sanctions against an attorney under section 128.7 and in some formulations of the test for awarding attorney fees under section 1021.5 to a party who claims to have achieved success by obtaining nonjudicial relief, the two tests are not the same. The determination in the sanctions order that plaintiff's pleading was not based on evidentiary support did not necessarily establish that the lawsuit lacked merit for purposes of section 1021.5. Plaintiff did not file a motion for attorney fees within the prescribed period and did not put before the trial court the issue of the merit of its claims as a motivating factor under section 1021.5. The reversal of the sanctions order merely established that defendants failed to carry their burden of proving the prerequisites to an award of sanctions; it did not establish that plaintiff's second amended complaint had merit, revive plaintiff's claim for attorney fees, or restart the time for filing a motion for an award of attorney fees.
Plaintiff did not file its motion for an award of attorney fees incurred prior to judgment within the time prescribed by rule 3.1702(b)(1). Its motion was untimely and the trial court did not abuse its discretion by denying the motion as to prejudgment attorney fees.
B. Attorney Fees on Appeal
1. Timeliness
Rule 3.1702(c)(1) provides, in pertinent part: "A notice of motion to claim attorney's fees on appeal ... under a statute or contract requiring the court to determine entitlement to the fees, the amount of the fees, or both, must be served and filed within the time for serving and filing the memorandum of costs under rule 8.278(c)(1)." Rule 8.278(c)(1) requires that a memorandum of costs be filed "[w]ithin 40 days after the clerk sends notice of issuance of the remittitur." Plaintiff asserts that the remittitur that was issued after the decision in the appeal of the sanctions order against plaintiff's attorney was issued on February 22, 2010. The motion for attorney fees was filed on April 1, 2010, within 40 days after that date. To the extent the motion requested an award of attorney fees incurred in connection with the appeal, it was timely filed.
The remittitur is not part of the record. The record reflects that the remittitur was filed in the trial court on February 24, 2010. Defendants do not deny the remittitur was issued on February 22, 2010, or that the motion for attorney fees was filed within 40 days thereafter.
2. Catalyst theory
Generally, attorney fees incurred in litigation are recoverable only when recovery is authorized by contract, statute, or law. (§§ 1021, 1033.5, subd. (a)(10).) "[I]t is established that fees, if recoverable at all-pursuant either to statute or parties' agreement-are available for services at trial and on appeal." (Serrano v. Unruh (1982) 32 Cal.3d 621, 637.) "Statutory authorization for the recovery of attorney fees incurred in trial court proceedings necessarily includes attorney fees incurred on appeal unless the statute specifically provides otherwise. [Citation.]" (Imperial Bank v. Pim Electric, Inc. (1995) 33 Cal.App.4th 540, 557, italics added.) Generally, attorney fees incurred on appeal and recoverable pursuant to statute or contract may be requested and awarded in the trial court after remittitur, even when the appellate court, in its decision, did not direct the trial court to award them. (Rule 8.278(d)(2); Harbour Landing-Dolfann, Ltd. v. Anderson (1996) 48 Cal.App.4th 260, 264.)
After prevailing on appeal of the sanctions order, plaintiff made a request in the trial court for an award of attorney fees that included fees incurred in connection with that appeal. The only basis for an award of fees asserted in plaintiff's motion was section 1021.5, which authorizes an award of fees to a successful party against the opposing party "in any action which has resulted in the enforcement of an important right affecting the public interest." Plaintiff asserts it has established that it is entitled to an award of attorney fees pursuant to section 1021.5.
Section 1021.5 provides, in full: "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. With respect to actions involving public entities, this section applies to allowances against, but not in favor of, public entities, and no claim shall be required to be filed therefor, unless one or more successful parties and one or more opposing parties are public entities, in which case no claim shall be required to be filed therefor under Part 3 (commencing with Section 900) of Division 3.6 of Title 1 of the Government Code. [¶] Attorney's fees awarded to a public entity pursuant to this section shall not be increased or decreased by a multiplier based upon extrinsic circumstances, as discussed in Serrano v. Priest (1977) 20 Cal.3d 25, 49.
Only a successful party may obtain an award of attorney fees pursuant to section 1021.5. Success "generally involves obtaining a favorable judicial decision, i.e., a judicially sanctioned or recognized change in the legal relationship of the parties." (Marine Forests, supra, 160 Cal.App.4th at p. 877.) Ordinarily, the party must succeed "'"'"on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit."' [Citation.]"'" (McGuigan, supra, 183 Cal.App.4th at p. 625.) While plaintiff succeeded in having the sanctions order against its attorney reversed, that reversal did not constitute a success on a significant issue that achieved some of the benefit plaintiff sought through its action. The sanctions order was a collateral issue that arose after plaintiff commenced its lawsuit. Prevailing on the sanctions appeal did not constitute success for purposes of an award of attorney fees pursuant to section 1021.5.
"However, a party who does not obtain any judicial relief may be entitled to section 1021.5 attorney fees under what is known as the 'catalyst theory,' which permits an award of attorney fees 'even when litigation does not result in a judicial resolution if the defendant changes its behavior substantially because of, and in the manner sought by, the litigation.' [Citations.]" (Marine Forests, supra, 160 Cal.App.4th at p. 877.) As the court explained in Graham, "'[i]n 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." [Citation.]'" (Graham, supra, 34 Cal.4th at p. 566.) Accordingly, even if the plaintiff did not obtain judicial relief, "'an award of attorney fees may be appropriate where "plaintiffs' lawsuit was a catalyst motivating defendants to provide the primary relief sought ...." [Citation.] A plaintiff will be considered a "successful party" where an important right is vindicated "by activating defendants to modify their behavior."' [Citation.]" (Id. at p. 567.)
To obtain an award of attorney fees on a catalyst theory, "a plaintiff must establish that (1) the lawsuit was a catalyst motivating the defendants to provide the primary relief sought; (2) that the lawsuit had merit and achieved its catalytic effect by threat of victory, not by dint of nuisance and threat of expense, as elaborated in Graham; and (3) that the plaintiffs reasonably attempted to settle the litigation prior to filing the lawsuit." (Tipton-Whittingham v. City of Los Angeles (2004) 34 Cal.4th 604, 608 (Tipton-Whittingham); see also, Graham, supra, 34 Cal.4th at pp. 575, 577.)
Plaintiff does not contend that it attained success by obtaining a favorable judicial resolution of its case as a whole. Plaintiff voluntarily dismissed its complaint at the pleading stage, before it obtained any judgment or order adjudicating the merits of any of its claims or granting it any relief. Plaintiff asserts instead that it is entitled to an award of attorney fees on a catalyst theory. It contends it sought to prevent the demolition of the sanctuary building through three efforts: it sought an injunction through its civil action, a stay through ecclesiastical judicial processes of the Presbyterian Church, U.S.A., and a historical resource designation through proceedings before the Merced City Council. Plaintiff argues that its efforts were successful because for years it "sought to have a bona fide engineering survey conducted of the Sanctuary Building to determine whether any viable alternative to its demolition exists. Now, with the Historical Resource Designation granted by the City of Merced, provisions of CEQA will ensure that that process is followed." (Fn. omitted.) Thus, it asserts its success is manifested in the city council's historical resource designation, rather than in any judicial remedy.
3. Obtaining the primary relief sought
Plaintiff's argument ignores certain factors involved in the test for success on a catalyst theory. One element plaintiff must establish to warrant an award of attorney fees on a catalyst theory is that "the lawsuit was a catalyst motivating the defendants to provide the primary relief sought." (Tipton-Whittingham, supra, 34 Cal.4th at p. 608.) The primary relief sought in plaintiff's litigation was an injunction against demolition of the sanctuary building. The prayer of the second amended complaint requested a preliminary injunction and a permanent injunction, enjoining defendants from "demolishing all, or any portion of the Sanctuary building," "removing any fixtures from the Sanctuary building," "expending any sums in furtherance of said demolition," "entering into any contracts nor applying for any permits in furtherance of said demolition," and "engaging in any acts whatsoever not heretofore mentioned in furtherance of said demolition." The prayer also prayed for "any other damages according to proof," but the body of the pleading did not allege that plaintiff sustained any monetary damages as a result of defendants' actions.
In Marine Forests, the California Coastal Commission commenced cease and desist proceedings against Marine Forests to require it to remove an experimental reef it had placed in the ocean. (Marine Forests, supra, 160 Cal.App.4th at p. 872.) Marine Forests responded by filing suit against the commission, claiming, among other things, that the scheme for appointing and removing members of the commission, by which the members of the commission served at the pleasure of the appointing authority, gave the legislative branch control over the commission, impermissibly interfering with the commission's executive branch responsibility for executing the laws. Marine Forests sought to enjoin the commission from issuing cease and desist orders. Marine Forests prevailed in the trial court. While an appeal to the California Supreme Court was pending, the Legislature amended the governing statute to eliminate the provision permitting commission members to be removed at will by the appointing authority. The Supreme Court reversed the injunctive relief because of the change in the statute and held that actions taken by the commission before the statutory amendment were valid. After the remittitur was issued, Marine Forests obtained an award of attorney fees in the trial court on a catalyst theory. (Id. at p. 875.)
The trial court's award was based on a finding that "'[a] significant goal of the litigation was to ensure that the composition of the Coastal Commission complied with the separation of powers doctrine.'" (Marine Forests, supra, 160 Cal.App.4th at p. 878.) It applied the wrong standard, however, because the catalyst theory requires that the defendant provide the plaintiff with "the primary relief sought." (Ibid.) Marine Forests' complaint indicated its primary goal was to save its reef, not to change the composition of the commission or have the governing statute declared unconstitutional. Marine Forests sought to enjoin the commission from exercising jurisdiction over Marine Forests, from granting, denying, or issuing permits, and from issuing and hearing cease and desist orders, thereby precluding the commission from enforcing its cease and desist order for removal of the reef. (Ibid.) Marine Forests did not achieve this goal; the cease and desist order for removal of the reef was held valid. (Id. at pp. 878-879.) Moreover, the commission did not change its behavior as a result of the litigation; the statutory change was the result of the Legislature's action, not the commission's. (Id. at p. 879.) Marine Forests failed to establish that it obtained the primary relief it sought in its litigation, and the order awarding attorney fees was reversed.
Plaintiff, like Marine Forests, did not establish that it obtained from defendants the primary relief it sought in its civil action. The second amended complaint primarily sought an injunction preventing demolition of the sanctuary building. Plaintiff did not obtain an injunction or any equivalent nonjudicial relief preventing defendants from demolishing the sanctuary building. Plaintiff's argument that it obtained the relief it sought seems to be this: Pursuant to Government Code section 37361, a city may regulate or place conditions on historical landmarks for their protection. (Gov. Code, § 37361, subd. (a), (b).) Noncommercial property owned by a nonprofit, religiously affiliated association is exempt, under certain circumstances (Gov. Code, § 37361, subd. (c)). Under CEQA, however, a property designated as a historical resource by local ordinance or resolution is presumed to be historically or culturally significant, and any project that may cause substantial adverse change in the significance of a historical resource (including demolition) requires preparation of an EIR. The CEQA regulations bar using a "categorical exemption" for a project that may cause a substantial adverse change in the significance of a historical resource (Cal. Code Regs., tit. 14, § 15300.2, subd. (f)), so the city's designation of the sanctuary building as a historical resource means that defendants cannot claim the exemption for property of a religious association under Government Code section 37361, but must comply with CEQA's EIR requirement before it can demolish the building.
Plaintiff did not obtain an order or a settlement agreement preventing CPC from demolishing the sanctuary building. It did not obtain a change in the behavior of CPC. The only change it cites was the passage of a resolution by the City of Merced. That resolution, even if valid and enforceable, did not enjoin or prevent demolition of the church building. At most, obtaining the resolution from the city placed an obstacle in defendants' path that will make it harder for defendants to demolish the sanctuary building if the congregation wishes to do so. In short, plaintiff did not obtain from defendants the primary relief sought in this litigation.
Defendants assert the resolution is not enforceable. CPC sued the city, seeking a writ of mandate or injunction to prevent the city from designating the sanctuary building as a historic resource. (Central Presbyterian Church of Merced v. City of Merced (Super. Ct. Merced County, 2008, No. 151196 (CPC v. City of Merced).) After the city council adopted the resolution making that designation, the court in that case issued a preliminary injunction enjoining the city from designating the sanctuary building as a historic resource and from implementing the resolution making such a designation. Subsequently, CPC and the city entered into a settlement of the litigation, in which the city agreed to a permanent injunction against enforcement of the resolution. CPC included trial court records from that litigation in the record on appeal; plaintiff contends those documents were not before the trial court when it considered the motion for attorney fees in this case, and this court cannot consider them. We need not consider those documents in order to determine whether plaintiff met the requirements for an award of attorney fees under section 1021.5 and whether the trial court abused its discretion by denying such an award.
4. Causation
The requirement that "the lawsuit was a catalyst motivating the defendants to provide the primary relief sought" is a causation requirement: the lawsuit must have caused the change in the defendant's behavior in order for the plaintiff to be entitled to an award of attorney fees incurred in pursuing the litigation. (Westside Community for Independent Living, Inc. v. Obledo (1983) 33 Cal.3d 348, 353.)
In Suter v. City of Lafayette (1997) 57 Cal.App.4th 1109, the plaintiffs filed suit challenging the validity of a city ordinance placing restrictions on firearms dealers. Prior to any judicial ruling on the matter, the city amended the ordinance, mooting the plaintiffs' action. (Id. at p. 1117.) The trial court sustained the defendant's demurrer without leave to amend and dismissed the action. The plaintiffs sought attorney fees pursuant to section 1021.5, asserting their action was the catalyst for the amendment of the ordinance. (Suter, supra, 57 Cal.App.4th at p. 1117.) The court upheld the denial of the plaintiffs' request for attorney fees. It noted that "'success' does not necessarily require that the litigant actually receive a favorable result at trial. It is enough that the lawsuit acted as a catalyst speeding the defendant to act in the sense that the plaintiff's lawsuit was a material factor, or contributed in a significant way, to the result achieved." (Id. at p. 1136.) The evidence, however, demonstrated the city had been in the process of amending the ordinance, and had so informed the plaintiffs' counsel, before the plaintiffs filed their lawsuit. Accordingly, the court upheld the trial court's conclusion "that neither the lawsuit nor the threat of the lawsuit acted as a catalyst in [the city's] decision to amend the ordinance." (Id. at p. 1137.)
Plaintiff did not establish the necessary causal connection in its motion. First, plaintiff does not contend its litigation motivated defendants to do anything at all. The relief it claims it obtained came from a third party-the City of Merced. Second, in its motion for attorney fees, plaintiff made no attempt to establish a causal connection between the litigation in which it sought an award of attorney fees and the relief it claims it obtained. It asserted that it engaged in a "three-prong approach" to preserving the sanctuary building, by filing a civil action for an injunction, pursuing a proceeding in ecclesiastical court for a stay of demolition, and applying for a historic resource designation by the city. Although plaintiff pursued these parallel proceedings, its motion did not demonstrate that its civil action caused, was a material factor in, or contributed in a significant way to, the city's decision to adopt the resolution designating the sanctuary as a historical resource. Plaintiff filed an application with the city for a historic resource designation and, after a series of hearings, the city adopted a resolution making that designation. Nothing in the record indicates the same proceedings would not have reached the same result if plaintiff's civil action had never been filed. Plaintiff cites nothing in the record indicating its lawsuit influenced the city's proceedings on its application at all. Plaintiff failed to establish a causal connection between the litigation and the relief plaintiff claims made it successful.
5. Whether the action had merit
Under section 1021.5, in order to make an award of attorney fees on a catalyst theory, the trial court must "gauge, objectively speaking, whether the lawsuit had merit." (Graham, supra, 34 Cal.4th at p. 575.) It must "determine that the lawsuit is not 'frivolous, unreasonable or groundless' [citation], in other words that its result was achieved 'by threat of victory, not by dint of nuisance and threat of expense.' [Citation.]" (Ibid.) "Attorney fees should not be awarded for a lawsuit that lacks merit, even if its pleadings would survive a demurrer. We believe that trial courts will be able to conduct an abbreviated but meaningful review of the merits of the litigation designed to screen out nuisance suits without significantly increasing attorney fee litigation costs." (Id. at p. 576.)
In its motion for attorney fees, plaintiff did not attempt to demonstrate that its action had merit. Plaintiff simply relied on the reversal of the sanctions order as somehow establishing its action was not frivolous. Our prior decision, however, did not determine that plaintiff's action was not frivolous, that its claims were meritorious, or that its factual allegations had evidentiary support. It merely concluded defendants had not met their burden of proving plaintiff's factual allegations lacked evidentiary support. Consequently, plaintiff's motion failed to establish the second element required for an award of fees on a catalyst theory-that its action had merit.
6. Conclusion
We conclude that plaintiff failed to establish the criteria necessary for an award of attorney fees under section 1021.5 on a catalyst theory. It failed to demonstrate that it obtained the primary relief sought in its complaint, that its lawsuit was a catalyst that motivated defendants to provide the primary relief sought, or that its action had merit. The trial court does not have discretion to award attorney fees unless the statutory criteria have been met as a matter of law. (McGuigan, supra, 183 Cal.App.4th at p. 623.) The trial court did not abuse its discretion when it denied plaintiff an award of attorney fees incurred in the appeal from the sanctions order.
B. Attorney fees for attorney fee motion
Plaintiff sought to recover its attorney fees incurred in litigating its motion for attorney fees. It contends that, "'absent circumstances rendering the award unjust, fees recoverable ... ordinarily include compensation for all hours reasonably spent, including those necessary to establish and defend the fee claim.'" (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1141.) We uphold the trial court's denial of plaintiff's motion for these fees for the same reasons we uphold the denial of prejudgment fees and fees incurred on appeal.
III. Motion for Sanctions
Plaintiff moves for an award of sanctions against defendants pursuant to rule 8.276, on the ground defendants included in the record on appeal 289 pages that were not before the trial court when it considered plaintiff's motion for attorney fees. Rule 8.276 provides: "On motion of a party or its own motion, a Court of Appeal may impose sanctions, including the award or denial of costs under rule 8.278, on a party or an attorney for: [¶] (2) Including in the record any matter not reasonably material to the appeal's determination." (Rule 8.276(a)(2).) Prior to the hearing of plaintiff's motion for attorney fees, defendants filed a request for judicial notice of the entire file of the CPC v. City of Merced case, in which CPC attempted to prevent the city from designating the sanctuary building as a historical resource. Plaintiff acknowledges defendants requested judicial notice of the case file, but contends that, because defendants did not also submit the actual file documents to the trial court at the hearing of the motion for attorney fees, the file was not before the court when it heard that motion and the file documents were improperly included by defendants in the record on appeal. Plaintiff seeks as sanctions the cost to plaintiff of including these pages in the record.
The court may take judicial notice of "[r]ecords of ... any court of this state." (Evid. Code, § 452, subd. (d).) It shall do so, if the party requesting judicial notice "[g]ives each adverse party sufficient notice of the request ... to enable such adverse party to prepare to meet the request"; and "[f]urnishes the court with sufficient information to enable it to take judicial notice of the matter." (Evid. Code, § 453, subds. (a), (b).) Defendants' request for judicial notice was made prior to the hearing of plaintiff's motion; it identified the case by name and case number, identified it as a case filed in the Merced County Superior Court, and requested judicial notice of the entire case file, and specifically the stipulated judgment entered in that case. Defendants gave plaintiff sufficient notice to enable it to meet the request, and plaintiff did so by filing opposition. Defendants also furnished the trial court with sufficient information to enable it to take judicial notice of records within its own court files. At the hearing, the trial court made no ruling on the requests for judicial notice. The parties and the court, however, discussed various aspects of the CPC v. City of Merced litigation and its effect on the historical resource designation and plaintiff's request for attorney fees. We note that plaintiff does not contend the CPC v. City of Merced file was irrelevant to the issues raised by the motion for attorney fees.
At the hearing, plaintiff's counsel asked for rulings on the requests for judicial notice, but the court responded: "You can skip that. Get down to the meat of the thing."
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Evidence Code section 456 provides: "If the trial court denies a request to take judicial notice of any matter, the court shall at the earliest practicable time so advise the parties and indicate for the record that it has denied the request." The record does not indicate that the trial court denied defendants' request for judicial notice of the CPC v. City of Merced court file.
Defendants' request for judicial notice complied with Evidence Code section 453. The trial court did not deny the request for judicial notice or advise the parties it was doing so as required by Evidence Code section 456. The discussion of the CPC v. City of Merced case during oral argument suggests the court considered the proceedings in that case in making its decision. Accordingly, defendants acted reasonably in requesting that documents from the CPC v. City of Merced court file be included in the record on appeal. We reject plaintiff's argument that the documents from the court record of the CPC v. City of Merced case constituted "matter not reasonably material to the appeal's determination." The request for sanctions is denied.
DISPOSITION
The order denying plaintiff's motion for an award of attorney fees is affirmed. Defendants are entitled to their costs on appeal.
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HILL, P. J.
WE CONCUR:
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WISEMAN, J.
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GOMES, J.