Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County No. BS100398, Daniel Solis Pratt, Judge.
Allen Matkins Leck Gamble Mallory & Natsis, Patrick E. Breen, Patrick A. Perry and Emily L. Murray for Defendants and Appellants.
The Silverstein Law Firm, Robert P. Silverstein and J. Miguel Flores for Plaintiff and Respondent.
KLEIN, P. J.
Defendants and appellants Los Angeles Unified School District and the Board of Education for the Los Angeles Unified School District (collectively, LAUSD or the District) appeal an order awarding attorney fees and costs to plaintiff and respondent The Right Site Coalition (Coalition) in the total sum of $254,087.77. The trial court awarded private attorney general fees (Code Civ. Proc., § 1021.5) to the Coalition for having succeeded in requiring the District to prepare an environmental impact report (EIR) in connection with a proposed elementary school project in Echo Park (the project).
All statutory references are to the Code of Civil Procedure, unless otherwise specified.
It is recognized the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq., CEQA) “involves important rights affecting the people of this state and that section 1021.5 was enacted to encourage the enforcement of such legislation by public interest litigation. [Citation.] But enforcement efforts alone do not justify an attorney fee award; the benefit gained must be significant and widespread.” (Concerned Citizens of La Habra v. City of La Habra (2005) 131 Cal.App.4th 329, 335-336 (Concerned Citizens).) The “mere vindication of a statutory violation is not sufficient to be considered a substantial benefit by itself.” (Id. at p. 335; accord Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 939 (Woodland Hills) [Legislature did not intend to authorize an award of private attorney general fees “in every case involving a statutory violation”].)
The essential question presented is whether the Coalition’s action conferred a “significant benefit . . . on the general public or a large class of persons” so as to entitle the Coalition to private attorney general fees. (§ 1021.5.)
We conclude the Coalition failed to meet its burden to establish the litigation achieved a significant public benefit. Therefore, the order is modified to eliminate the award of attorney fees and otherwise is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Coalition’s successful petition for writ of mandate to compel LAUSD to prepare an EIR in connection with the project.
In October 2005, LAUSD approved a mitigated negative declaration (MND) for the subject project, a new school on a 3.35 acre site in Echo Park, bounded by North Alvarado on the east, Santa Ynez Street on the south and Mohawk Street on the west. Among other things, the project called for the closure of Marathon Street and the demolition of approximately 50 residences.
“ ‘Mitigated negative declaration’ means a negative declaration prepared for a project 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.)
On November 23, 2005, the Coalition filed a petition for writ of mandate to compel LAUSD to prepare an EIR for the project and to suspend any work on the project unless and until an EIR was prepared, circulated and certified. The matter came on for hearing on December 18, 2006.
The Coalition is an unincorporated California association consisting of property owners and tenants who will be affected by the project.
On February 21, 2007, the trial court entered judgment directing the issuance of a peremptory writ of mandate requiring LAUSD to comply with CEQA by preparing an EIR, to invalidate any approvals already obtained for the project, and to refrain from undertaking any activities in connection with the project “unless an EIR has been prepared, publicly circulated and approved.”
The trial court ruled the Coalition had presented a fair argument of significant environmental impacts to be addressed in an EIR related to the following items: (1) traffic; (2) pedestrian safety; (3) public services, including emergency responses and impacts to the adjacent fire station by the proposed closure of Marathon Street; (4) population and housing; (5) cultural and historic resources; and (6) land use. With respect to a seventh issue, the environmental impact of hazardous materials, the trial court ruled against the Coalition.
2. The Coalition’s motion for private attorney general fees.
On June 4, 2007, the Coalition filed a motion pursuant to Code of Civil Procedure section 1021.5, the private attorney general statute, for an award of attorney fees, including a multiplier thereon, and costs, seeking a total of $327,636.92. The Coalition contended the criteria for section 1021.5 were well met – it was the successful party in the litigation, its action had enforced an important right affecting the public interest, it had conferred a significant benefit on a large class of persons, and the necessity and financial burden of private enforcement were such as to make the award appropriate.
With respect to whether the Coalition had conferred a significant benefit on a large class of persons, the Coalition’s motion devoted two paragraphs to that issue. In essence, the Coalition argued the benefits of the CEQA litigation extended “to all citizens of Echo Park and Los Angeles who were affected by LAUSD’s decision to prepare an MND instead of an EIR, including potential students and their families for decades to come.”
In opposition, LAUSD contended the gains achieved by the Coalition did not rise to the level of a significant public benefit. LAUSD argued “the EIR fully confirms the findings of the MND that the construction of CRES#14 [the proposed school] will not result in any environmental impacts that cannot be mitigated to a less than significant level. . . . The EIR has identified only one potentially significant impact that was not identified in the MND, and the EIR provides for the implementation of one measure to mitigate that impact to a less than significant level. . . . [The Coalition’s] actions have not effectuated a change in the District’s policies or practices regarding environmental review, have not resulted in any significant additional protection for the environment, and have not effectuated a change in the design or location of CRES #14 itself.” (Italics added.) The most that the Coalition “can claim to have achieved in this case is the correction of a statutory violation resulting from a procedural defect in the District’s approach to CEQA in connection with its approval of this specific project. As stated in [Concerned Citizens], however, ‘the mere vindication of a statutory violation is not sufficient to be considered a substantial benefit by itself.’ ([Concerned Citizens], supra, 131 Cal.App.4th at p. 335.)” The “only result achieved by [the Coalition] in this case has been to delay the construction of [the school] for the period of time necessary for the District to prepare the EIR.”
In addition, LAUSD argued the fees incurred by the Coalition did not qualify for a multiplier, and that the Coalition improperly had requested fees which were not incurred in connection with the present action.
For the first time in its reply papers, the Coalition asserted the following significant public benefits resulting from the litigation: enhanced safety for pedestrians and schoolchildren due to the mitigation measure of fully signalized intersection at Santa Ynez and Alvarado; hazardous materials discovery and cleanup through the involvement of the California Department of Toxic Substances Control; the identification of the soon to be vacated Rampart Police Station as an environmentally superior site; increased public participation in the process; and a change in understanding and policy at LAUSD with respect to CEQA. The Coalition also asserted the EIR had achieved the benefit of “traffic calming mitigation measures,” and that in and of itself was a sufficient public benefit to justify private attorney general fees.
On June 26, 2007, the matter came on for hearing. At the outset, the trial court acknowledged its lack of familiarity with the subject matter. In arguing to the trial court against an award of attorney fees, LAUSD’s counsel emphasized “the public always has a significant interest in seeing that laws are enforced. Yes, that’s correct, but it goes beyond that. It’s more than simply vindicating the important public policies. It’s also conferring a significant benefit. A significant benefit; not just a benefit.” (Italics added.) The trial court responded: “I appreciate what you’re saying, and we can debate this, but that’s not what I wanted to get into. I thought I made that clear.”
After taking the matter under submission, on July 10, 2007, the trial court issued its order awarding fees and costs to the Coalition as follows: $147,098.30 in attorney fees with a multiplier of 1.5 for a total of $220,647.45; motion fees of $27,412.50; costs per memorandum in the sum of $2,250.13; and additional costs of $3,777.69.
LAUSD filed a timely notice of appeal from the order.
CONTENTIONS
The District contends: the trial court misconstrued section 1021.5 by failing to distinguish between (1) the enforcement of an important right affecting the public interest and (2) the conferral of a significant benefit on a large class of persons; the trial court could not have found a significant public benefit had been conferred; the trial court erred in applying a multiplier; any award of attorney fees incurred in connection with the preparation of the fee motion did not qualify for a multiplier; and certain attorney fees incurred by Right Site were unrelated to this case and are not recoverable in connection with the instant action.
DISCUSSION
1. Standard of appellate review.
Although an award of attorney fees is normally reviewed for an abuse of discretion, “ ‘de novo review of such a trial court order is warranted where the determination of whether the criteria for an award of attorney fees and costs in this context have been satisfied amounts to statutory construction and a question of law.’ ” (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175.)
2. Criteria for recovery of private attorney general fees under section 1021.5; the party seeking fees must establish the CEQA litigation resulted in a significant public benefit.
It is recognized that “CEQA involves important rights affecting the people of this state and that section 1021.5 was enacted to encourage the enforcement of such legislation by public interest litigation. [Citation.] But enforcement efforts alone do not justify an attorney fee award; the benefit gained must be significant and widespread.” (Concerned Citizens, supra, 131 Cal.App.4th at pp. 335-336.) The “mere vindication of a statutory violation is not sufficient to be considered a substantial benefit by itself.” (Id. at p. 335 ; accord Woodland Hills, supra, 23 Cal.3d at p. 939.)
Concerned Citizens is procedurally somewhat similar to this case. There, the plaintiffs successfully challenged a city’s approval of a project pursuant to an MND and the city ultimately prepared an EIR for the project, rather than merely amending the MND. (Concerned Citizens, supra, 131 Cal.App.4th at pp. 332-333.) Nonetheless, no significant public benefit was shown within the meaning of section 1021.5. (Id. at pp. 335-336.)
Section 1021.5, the controlling statute, provides in relevant 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.” (Italics added.) Thus, an important right affecting the public interest and a significant public benefit are not synonymous.
Because section 1021.5 “states the criteria in the conjunctive, each of the statutory criteria must be met to justify a fee award. [Citations.]” (County of Colusa v. California Wildlife Conservation Bd. (2006) 145 Cal.App.4th 637, 648.)
The burden is on the claimant in the trial court to establish each prerequisite to an award of attorney fees under section 1021.5. (Ryan v. California Interscholastic Federation (2001) 94 Cal.App.4th 1033, 1044 (Ryan); Consumer Cause, Inc. v. Mrs. Gooch’s Natural Food Markets, Inc. (2005) 127 Cal.App.4th 387, 401 (Consumer Cause).) The trial court’s determination the claimant has satisfied the statutory criteria will not be disturbed by this court absent a clear abuse of discretion. (Ryan, supra, at p. 1044.)
3. No dispute the Coalition’s action resulted in the enforcement of an important right affecting the public interest.
In the instant case, there is no dispute the Coalition’s action, which resulted in the preparation of an EIR for the project, “resulted in the enforcement of an important right affecting the public interest . . . .” (§ 1021.5, italics added.) LAUSD concedes that point.
LAUSD’s contention is that notwithstanding the Coalition’s success in enforcing an important right affecting the public interest, the Coalition failed to establish its action had conferred a significant benefit on the general public or a large class of persons. (§ 1021.5.) We now turn to that issue.
4. Trial court erred in awarding fees to the Coalition because the Coalition failed to meet its burden to establish its action conferred a significant benefit on the general public or a large class of persons.
The significant benefit criterion calls for an examination whether the litigation has achieved a significant benefit for the general public or a large class of persons. (§ 1021.5.) This element helps implement “the general requirement that the benefit provided by the protagonist’s action must inure primarily to the public and be substantial[.]” (Marini v. Municipal Court (1979) 99 Cal.App.3d 829, 836.)
In seeking attorney fees below, the Coalition contended its litigation conferred multiple significant public benefits. We now examine each of those bases to determine if any of them support a finding of significant public benefit so as to entitle the Coalition to recover private attorney general fees.
LAUSD, as the appellant, has the burden to demonstrate an abuse of discretion by the trial court. (Ryan, supra, 94 Cal.App.4th at p. 1044.) However, the Coalition had the burden in the trial court to establish its entitlement to attorney fees pursuant to section 1021.5. (Ryan, supra, at p. 1044; Consumer Cause, supra, 127 Cal.App.4th at p. 401.) Based on our review of the record, we conclude the Coalition failed to meet its burden below. In the absence of a proper showing by the Coalition that its action conferred a significant public benefit, the trial court’s decision awarding private attorney general fees to the Coalition cannot be upheld.
a. Traffic calming measures.
In seeking private attorney general fees, the Coalition’s reply papers below contended the EIR resulted in traffic calming mitigation measures, and that alone should suffice as a significant public benefit. The Coalition offered no elaboration.
In this regard, the opposing declaration of Jay Golida explained said mitigation measure required monetary contributions to a neighborhood traffic program that would implement certain traffic calming measures on the affected streets.
Nothing more can be gleaned from the attorney fees motion with regard to the nature of the traffic calming mitigation measures.
There was no showing in the moving papers to support a finding the traffic calming mitigation measures resulted in a significant benefit to the general public or a large class of persons, as contrasted with being only a highly localized and limited local mitigation measure. (See, e.g. Stevens v. City of Glendale (1981) 125 Cal.App.3d 986, 1000 [no showing of significant public benefit where the affected parties were adjoining neighbors].) The Coalition’s papers did not mention the amount of the required monetary contribution, let alone explain how the funds were to be utilized, how the calming measures would alleviate traffic, or the extent of the area which would be benefited by the traffic calming measures.
Section 1021.5 provides for an award only when the lawsuit has conferred “a significant benefit” on “the general public or a large class of persons.” The trial court must “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.” (Woodland Hills, supra, 23 Cal.3d at pp. 939-940.)
Here, the Coalition’s motion for fees under section 1021.5 failed to make a showing that the traffic calming measures conferred a significant benefit on the general public or a large class of persons. (§ 1021.5.) On the record presented, an award of attorney fees on that basis cannot be upheld.
b. Traffic signal at Alvarado and Santa Ynez.
In seeking private attorney general fees, the Coalition also contended its litigation conferred the substantial public benefit of enhanced safety for pedestrians and schoolchildren in that but for this litigation, a fully signalized intersection would not have been required at the corner of Alvarado and Santa Ynez. The record does not support this contention.
The opposition declaration of Robin S. Brown, a development program manager in the facilities services division of LAUSD, stated: The MND adopted by LAUSD for the project provided for the installation of a smart crosswalk at the intersection of Alvarado and Santa Ynez. During the summer of 2006, she engaged in a number of communications with Mike Bagheri of the Los Angeles Department of Transportation (LADOT) regarding the proposed smart crosswalk. In September 2006, Bagheri informed her that LADOT would require a full traffic signal in lieu of the proposed smart crosswalk at the intersection of Alvarado and Santa Ynez. These circumstances are not in dispute.
Five months after LADOT indicated it would require a full traffic signal at said intersection, in February 2007, the trial court granted the Coalition’s petition for writ of mandate to compel LAUSD to prepare an EIR for this project. Therefore, LADOT’s determination a full traffic signal would be required at the subject intersection cannot be attributed to the preparation of the EIR.
c. Hazardous materials discovery and cleanup.
In seeking fees, the Coalition also contended its litigation conferred the substantial public benefit of hazardous materials discovery and cleanup. The argument is not supported by the record.
As discussed above, the trial court rejected the Coalition’s contention the scope of the EIR should include the issue of hazardous materials. The trial court held the Coalition had failed to demonstrate a fair argument that the project may have significant impacts with regard to hazardous materials. The trial court explained: “The court is not persuaded that the presence of oxygen tanks and diesel fuel at the Fire Station represents a fair argument that the proposed school may be significantly impacted by hazardous materials.” Therefore, the EIR was not required to address the issue of hazardous materials.
Nonetheless, the California Department of Toxic Substances Control became involved in the project. Education Code sections 17213.1 and 17213.2 require proposed schoolsites to undergo environmental assessment. Here, the investigation revealed significant public health concerns and the contamination at the site was remediated.
On this record, the discovery and cleanup of contamination at the project site cannot be attributed to the Coalition’s action to compel LAUSD to prepare an EIR for the project.
d. The identification of Rampart Police Station as an environmentally superior site.
In seeking fees, the Coalition also contended its litigation conferred the substantial public benefit of a finding in the draft EIR that the soon-to-be-vacated Rampart Police Station was an environmentally superior site for the project. This argument had no merit.
The record reflects the Rampart site was not a feasible alternative and was not selected. In this regard, the draft EIR stated: “Even though this alternative has been identified as environmentally superior, a portion of this site is currently used for a police station and will be used for other [LAPD] functions once the Rampart Division has moved.”
The mere identification of Rampart as an environmentally superior site, a site which ultimately was not selected, did not confer a significant benefit upon the public.
e. Increased public participation.
In seeking fees, the Coalition further contended its litigation conferred the substantial public benefit of increased public participation in the process. The Coalition asserted “[b]y increasing, and nearly doubling the amount of public comment between the MND and EIR, and by doing so over a two-year period, far more people have been able to ‘voice concerns and objections.’ ” (Italics added.) The Coalition argued the involvement of Caltrans and the Department of Toxic Substances Control “which have resulted in substantial changes and healthy and safety improvements should be enough. Beyond that, [the Coalition] and others, including Council President Eric Garcetti’s office and LADOT, continue to submit new comments on the Project as part of the EIR process.”
Preliminarily, as discussed above, neither LADOT’s requiring a traffic signal at Alvarado and Santa Ynez, nor the discovery and cleanup of hazardous wastes at the site, are attributable to the EIR litigation.
The issue remains whether increased public participation, in and of itself, constitutes a significant public benefit for purposes of recovery of private attorney general fees.
(1) Schwartz decision is inapposite.
In Schwartz v. City of Rosemead (1984) 155 Cal.App.3d 547 (Schwartz), the appellant’s action to compel the city to conduct an environmental assessment pursuant to CEQA “secured the opportunity for a large number of fellow residents and affected property owners to voice their concerns and objections to a cogeneration plant which was scheduled to be constructed without compliance with CEQA. His action not only ensured the City’s compliance with CEQA, but permitted a large class of persons to contribute their input towards the City’s ultimate decision.” (Id. at p. 558.) This satisfied the requirement of the litigation having conferred a significant benefit upon a large class of persons. (Ibid.)
Schwartz, however, is clearly distinguishable. There, the city’s planning director concluded a proposed cogeneration plant did not require either an EIR or a negative declaration and the city’s planning commission approved the project without making any assessment as to possible environmental effects of the cogeneration plant. (Schwartz, supra, 155 Cal.App.3d at p. 551.)
Here, in contrast, there was the opportunity for public review and comment as part of the MND process. Therefore, even without the EIR, there was public participation in this matter. The Coalition did not show the public comment on the EIR was anything more than cumulative so as to constitute a significant public benefit.
(2) Reliance on Bowman unavailing.
The Coalition relies heavily on Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173 (Bowman), wherein the plaintiffs’ action conferred a significant public benefit in terms of additional input into a project. (Id. at pp. 179-181.) There, when the project first came before the city council, the council referred the matter to mediation between the neighbors and the developer. “The matter was continued, while the mediation was ongoing, to the city council meeting on May 28, 2002. At 3:05 p.m. on May 28, the mediator e-mailed the city council reporting on the status of the mediation. The e-mail described changes to the project that had been discussed, and advised that the parties had agreed to ‘submit any modified plan that may result from such discussions by 6/3/02.’ A city staff member left a phone message for Bowman that afternoon asking her to call him. Bowman called back twice and left messages stating that the mediator had given her the impression that she did not need to attend the city council meeting that night, but that she would attend if the council was going to go forward on the project. There was no evidence that these calls were returned, and none of the Neighbors appeared at the meeting.” (Id. at pp. 179-180.) The council went on to approve the project at the May 28 meeting without the neighbors present. (Id. at p. 180.)
In its order “returning the matter to the City, the court found that, by approving the project at the May 28 meeting, the City improperly short-circuited the mediation before it had concluded.” (Bowman, supra, 131 Cal.App.4th at p. 180.)
With respect to the issue of private attorney general fees, the city “argue[d] that no one other than the Neighbors benefited from the new hearing the City was required to conduct on the project, and that the Neighbors received no benefit other than telephonic notice of the city council meeting following the remand.” (Bowman, supra, 131 Cal.App.4th at p. 179.)
Bowman found 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. As the court noted in its attorney fee ruling, ‘both parties used the opportunity to supplement the administrative record to provide additional evidence intended to sway findings made by the council members.’ ” (Bowman, supra, 131 Cal.App.4th at p. 180.)
In the instant case, there was no showing by the Coalition in its motion for private attorney general fees that any significant environmental issues were raised in connection with the preparation of the EIR that were not raised previously during the public review and comment on the MND. The circulation of an EIR will always result in interested persons voicing concerns and objections to a project. However, additional public participation does not, in and of itself, constitute a significant public benefit within the meaning of section 1021.5 – if it did, every plaintiff who prevails in litigation to compel the preparation of an EIR would be entitled to attorney fees. To reiterate, the mere vindication of a CEQA violation is not sufficient to be considered a substantial benefit; the benefit gained must be significant and widespread. (Concerned Citizens, supra, 131 Cal.App.4th at pp. 335-336; Woodland Hills, supra, 23 Cal.3d at p. 939.)
We conclude the Coalition failed to meet its burden to establish the additional opportunity for public comment on the EIR resulted in a significant public benefit.
f. LAUSD’s alleged change in policy.
In moving for private attorney general fees, the Coalition also contended its litigation resulted in a change of understanding and policy at LAUSD regarding CEQA. In support, the Coalition cited a statement by then LAUSD board member David Tokofsky at an LAUSD facilities committee hearing, in reference to the trial court’s decision ordering preparation of an EIR for the project, “I think in the future we’ll have to probably err on the EIR much more.”
The statement of then board member Tokofsky, acknowledging the need to comply with CEQA, does not equate with a policy change on the part of LAUSD. (See Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 929 [a legislator’s personal understanding of a bill does not indicate Legislature’s collective intent in enacting that bill].) There was no showing the board of LAUSD, in response to the trial court’s decision ordering preparation of an EIR, adopted a new policy regarding compliance with CEQA.
We conclude the reaction of an individual school board member to this litigation did not constitute a change in LAUSD policy and thus did not result in a significant public benefit.
CONCLUSION
In moving for private attorney general fees, the Coalition failed to meet its burden to establish its action conferred a significant benefit on the general public or a large class of persons. Therefore, the fee award is unsupported.
We are aware that on July 18, 2008, shortly before the filing of this opinion, the trial court granted a petition by the Coalition for writ of mandate, on the ground the EIR for the project was inadequate. (Evid. Code, §§ 452, subd. (d), 459.) Said ruling restrains LAUSD from taking any action in furtherance of the project unless an EIR has been properly prepared, circulated and approved.
DISPOSITION
The July 10, 2007 order is modified to eliminate the award of $220,647.45 in attorney fees for the CEQA litigation as well as the award of $27,412.50 in attorney fees related to the attorney fee motion. As modified, the order is affirmed. The parties shall bear their respective costs on appeal.
We concur: CROSKEY, J. KITCHING, J.
Nonetheless, the July 18, 2008 ruling has no bearing on this opinion. The instant appeal concerns the propriety of the trial court’s July 10, 2007 order awarding private attorney general fees to the Coalition. Based on our review of the record, we have concluded the July 10, 2007 fee award cannot be upheld because the Coalition failed to make a proper showing that its action to compel the preparation of an EIR conferred a significant benefit on the general public or a large class of persons. The Coalition’s subsequent success in invalidating the EIR does not serve to bolster the July 10, 2007 order.