Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County, No. 37-2008-00093831- CU-TT-CTL Linda B. Quinn, Judge.
McINTYRE, J.
Chollas Restoration, Enhancement and Conservancy Community Development Corporation (Chollas) appeals from orders awarding costs to the City of San Diego (the City), and denying its requests for attorney fees and costs incurred related to its petition for writ of mandate challenging the City's approval of construction of a park in the City Heights neighborhood of San Diego. We conclude that the trial court acted well within its discretion in awarding the City costs and denying Chollas's requests for attorney fees and costs. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In late 2006, the City determined that property it owned in City Heights was an ideal location for a neighborhood park. The City approved construction of the park without preparing an environmental impact report (EIR). Instead, the City prepared a mitigated negative declaration (MND), finding that although the project could have significant environmental impacts, such impacts were alleviated through mitigation measures. Notice of the draft MND was published on May 9, 2008, and required comments to be submitted by May 28, 2008. Additionally, the notice was posted in the county clerk's office on May 14, 2008. After receiving public comments, including from Chollas, the City approved the project and adopted the MND on July 29, 2008.
After the City denied an administrative appeal, Chollas filed a petition for writ of mandate. In the operative first amended petition, Chollas asserted three causes of action: (1) failure to prepare an EIR, as required by the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.); (2) failure to provide adequate notice of the MND, as required by CEQA; and (3) violation of Chollas's rights to due process and a fair hearing. Chollas argued that the City should have prepared an EIR because there was a fair argument that the project would have significant environmental impacts with respect to flooding, contamination caused by runoff and sewage, and biological resources, which would not be mitigated by measures set forth in the MND.
After a hearing, the trial court issued an order granting Chollas's petition in part and denying it in part. The trial court denied the petition as to Chollas's "substantive arguments, " concluding that the City was not required to prepare an EIR because there was not a fair argument that the project would have significant environmental impacts. The only portion of the petition that the court granted was in regard to the notice issue, finding that publication was one day short of the requisite notice period, and posting at the county clerk's office was six days short. The trial court entered judgment incorporating its prior order and issued a peremptory writ of mandate.
The peremptory writ of mandate ordered the City to rescind the denial of the administrative appeal and to give notice of the draft MND in compliance with CEQA. In addition, the court granted injunctive relief, stating: "Respondent shall suspend any and all activities under and take no action in reliance on Resolution no. R-304140, the Mitigated Negative Declaration for Project no. 149112 for Wightman Street Neighborhood Park..., the General Development Plan for the Wightman Street Neighborhood Park..., or any combination of those items that could result in an adverse change in the environment until the Court determines that Respondent has complied with CEQA." As a result of the writ, the City released the draft MND for a new notice period in May 2010.
Thereafter, Chollas and the City each requested an award of costs pursuant to Code of Civil Procedure section 1032 (§ 1032), and filed a motion to strike the other's request for costs. While the motions to strike were pending, Chollas filed an appeal challenging the judgment on the substantive issues in its petition. Thereafter, Chollas moved for an award of attorney fees, in the amount of $115,439.46, pursuant to Code of Civil Procedure section 1021.5 (§ 1021.5).
After a hearing on the parties' requests for costs and cross-motions to strike, the trial court determined that the City, as the prevailing party, was entitled to recover its costs and granted the City's motion to strike Chollas's request for costs. In making its ruling, the trial court noted that "on balance, goals of the litigation certainly were not met by [Chollas's] efforts." Subsequently, the trial court denied Chollas's motion for an award of attorney fees on the basis that the City continued to be the prevailing party. Chollas then filed a second appeal challenging the trial court's orders on costs and fees.
Although Chollas filed an appeal challenging the trial court's substantive decisions on its petition, Chollas now asserts that it "is not pursuing an appeal of the substantive decisions, " but rather, has limited its appeal to the trial court's orders denying its requests for fees and costs and awarding the City costs. Accordingly, our review is limited to the trial court's orders awarding the City costs, granting the City's motion to strike Chollas's request for costs, and denying Chollas's request for attorney fees.
DISCUSSION
I. Attorney Fees
A. Legal Principles
Section 1021.5 codifies the private attorney general doctrine adopted by the California Supreme Court in Serrano v. Priest (1977) 20 Cal.3d 25. (Woodland Hills Residents Assn., Inc. v. City Council of L.A. (1979) 23 Cal.3d 917, 933.) Under section 1021.5, the court may award attorney fees to a "successful party" if that party shows that the litigation: "(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." (§ 1021.5.) Because the statute states the criteria in the conjunctive, each must be satisfied to justify a fee award. (Punsly v. Ho (2003) 105 Cal.App.4th 102, 114; § 1021.5.)
"The threshold requirement for a fee award under section 1021.5 is proof that the fee applicant is a 'successful party.' [Citation.] As used in section 1021.5, 'successful' is synonymous with 'prevailing.'" (Protect Our Water v. County of Merced (2005) 130 Cal.App.4th 488, 493 (Protect Our Water).) The litigant need not prevail "on every single issue litigated" in order "to be 'successful' within the meaning of section 1021.5." (Hull v. Rossi (1993) 13 Cal.App.4th 1763, 1768.) However, "the mere vindication of a statutory violation is not sufficient" to warrant an award of fees by itself. (Concerned Citizens of La Habra v. City of La Habra (2005) 131 Cal.App.4th 329, 335 (La Habra); see also Stevens v. City of Glendale (1981) 125 Cal.App.3d 986, 1000 [affirming denial of attorney fees where plaintiff "prevailed only on a technical point of lack of public notice"].) Rather, "[c]ourts take a 'broad, pragmatic view of what constitutes a "successful party"' in order to effectuate the policy underlying section 1021.5." (RiverWatch v. County of San Diego Dept. of Environmental Health (2009) 175 Cal.App.4th 768, 782-783 (RiverWatch), citing Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 565, italics added.) Whether a party is successful depends on whether "plaintiff's lawsuit was a catalyst that motivated the defendant to provide the primary relief sought and when the lawsuit vindicated an important public interest." (Protect Our Water, supra, 130 Cal.App.4th at p. 493.)
In ruling upon a section 1021.5 fees request, the trial court will exercise "'"its traditional equitable discretion."'" (RiverWatch, supra, 175 Cal.App.4th at p. 776.) The trial court "'"'must realistically assess the litigation and determine, from a practical perspective' [citation] whether or not the statutory criteria have been met."'" (Ibid., italics added.) The determination of whether to award fees "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.]'" (La Habra, supra, 131 Cal.App.4th at p. 334.)
B. Successful Party
Chollas argues that the trial court abused its discretion by denying its motion for attorney fees on the basis that the City, not Chollas, was the successful party and by failing to consider post-judgment evidence in making such determination. Although we do not reach the issue of whether post-judgment evidence should be considered in making a successful party determination under section 1021.5, even if such evidence were considered in this case, we conclude that the trial court did not abuse its discretion in denying Chollas's request for attorney fees.
As part of its motion for attorney fees, Chollas submitted evidence of information provided to the City after the re-noticed MND, including comments from the California Department of Toxic Substances Control, a petition signed by members of the public informing the City that they were opposed to the approval of the park without preparation of an EIR, and test results from soil sampling conducted by the office of a city council member. Chollas contends that it was the successful party for purposes of recovering fees because these documents were provided to the City after the MND was re-noticed, and the public was given a further opportunity to comment on the project.
Although the trial court did not consider Chollas's post-judgment evidence, it assessed the circumstances of the case and determined that, for purposes of attorney fees, the City, not Chollas, was the successful party. This ruling was based on the court's earlier determination in regard to costs, in which the court stated that "on balance, goals of the litigation certainly were not met by [Chollas's] efforts." The trial court previously rejected each of Chollas's "substantive arguments, " and granted the petition only in regard to Chollas's claim that notice of the MND was defective.
We agree with Chollas that CEQA's procedural requirements, including its notice requirements, are important in that they allow for public participation. However, prevailing on a technical point, as Chollas did here, is not sufficient to warrant an award of attorney fees, especially where the public had a significant amount of time to comment on the MND when it was originally noticed. (See La Habra, supra, 131 Cal.App.4th at p. 335; Stevens, supra, 125 Cal.App.3d at p. 1000.) Even if Chollas's post judgment evidence were considered, there is nothing in the record before us indicating that Chollas's petition was "a catalyst that motivated the [City] to provide the primary relief sought...." (Protect Our Water, supra, 130 Cal.App.4th at p. 493.) Rather, it is clear that the primary relief sought by Chollas was preparation of an EIR. Nothing in the record shows that an EIR was prepared or even whether the MND was finally adopted, rejected, or revised based on information the City received after the second notice of the MND. Accordingly, we agree with the trial court that, as a practical matter, Chollas did not meet its litigation goals and cannot be considered the successful party in this litigation by prevailing on merely a small procedural matter. Thus, we conclude that the trial court did not abuse its discretion by denying Chollas's request for attorney fees.
Having determined that Chollas was not a successful party, we need not consider the other section 1021.5 criteria as Chollas failed to meet the threshold requirement of proving that it was successful in its litigation efforts. (See Protect Our Water, supra, 130 Cal.App.4th at p. 493.)
II. Costs
Chollas's contends that the trial court abused its discretion by striking its memorandum of costs and awarding costs to the City. We disagree.
Both parties in this action sought to recover costs as the "prevailing party" under section 1032, subdivision (b), which states: "Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding." The trial court determined that the City was the prevailing party and awarded it costs.
Chollas argues that the City was not the "prevailing party" under section 1032. Instead, Chollas relies on the premise that "prevailing party" is synonymous with "successful party" (see Protect Our Water, supra, 130 Cal.App.4th at p. 493), to argue that it, rather than the City, should have been awarded costs. Although the premise that Chollas relies on is correct, Chollas is not the prevailing party in this action. Because we rejected Chollas's argument that it was a successful party, we also reject its argument that it was a prevailing party. We accordingly affirm the trial court's order striking Chollas's memorandum of costs and awarding costs to the City.
DISPOSITION
The orders are affirmed. The City shall recover its costs on appeal.
WE CONCUR: NARES, Acting P. J.AARON, J.