Opinion
F059857 Super. Ct. No. MCV045353
09-14-2011
MADERA OVERSIGHT COALITION, INC., et al., Plaintiffs and Respondents, v. COUNTY OF MADERA, Defendant and Appellant; TESORO VIEJO, INC., et al., Real Parties in Interest and Appellants.
David A. Prentice and Douglas W. Nelson for Defendant and Appellant. Sanger & Olson, John M. Sanger and Charles R. Olson for Real Parties in Interest and Appellants. Sara Hedgpeth-Harris; and Patience Milrod for Plaintiffs 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Madera County. James E. Oakley, Judge.
David A. Prentice and Douglas W. Nelson for Defendant and Appellant.
Sanger & Olson, John M. Sanger and Charles R. Olson for Real Parties in Interest and Appellants.
Sara Hedgpeth-Harris; and Patience Milrod for Plaintiffs and Respondents.
Defendant and real parties in interest contend that the superior court abused its discretion in awarding attorney fees to plaintiffs under the private attorney general doctrine set forth in Code of Civil Procedure section 1021.5 (section 1021.5). In the underlying lawsuit, plaintiffs sought and obtained a writ of mandate to remedy a violation of the California Environmental Quality Act (CEQA). The writ of mandate issued by the superior court directed the County of Madera (County) to set aside its certification of the environmental impact report (EIR) for a development project and to vacate its approval of entitlements related to the project. The writ of mandate also directed County not to recertify the EIR until it had cured the deficiencies in the EIR's discussion of the project's proposed water supply.
We conclude that the superior court did not abuse its discretion in (1) determining that plaintiffs satisfied the statutory criteria entitling them to an award of attorney fees under section 1021.5 or (2) setting the amount of the fee award. Therefore, we will affirm the order awarding attorney fees.
FACTS AND PROCEEDINGS
Plaintiffs in this proceeding are (1) Madera Oversight Coalition, Inc., a California nonprofit corporation that alleges its members are residents of Madera County committed to preventing further environmental damage, (2) Revive the San Joaquin, Inc., a California corporation that describes itself as a grassroots nonprofit organization, qualified under section 501(c)(3) of the Internal Revenue Code (26 U.S.C. § 501(c)(3)), working to restore and sustain a healthy San Joaquin River, and (3) the Dumna Tribal Council, the governing body of the Dumna Tribe.
The defendant and real parties in interest in this matter are (1) County, (2) Tesoro Viejo, Inc., (3) Rio Mesa Holdings, LLC and (4) Tesoro Viejo Master Mutual Water Company (collectively, defendants).
Tesoro Viejo, Inc., and Rio Mesa Holdings, LLC are the proponents of a mixed-use development project known as Tesoro Viejo, which is located on 1,579 acres of land in southeastern Madera County. As proposed, the project would contain up to 5,190 dwelling units and about three million square feet for commercial, retail, office, public institutional, and light industrial uses.
In December 2008, County's board of supervisors certified the final EIR for the Tesoro Viejo project and approved the related specific plan, rezoning, infrastructure master plan, and water supply assessment.
In January 2009, plaintiffs challenged County's approval of the Tesoro Viejo project by filing a petition for writ of mandamus and a complaint for declaratory and injunctive relief. Plaintiffs' five causes of action alleged (1) violations of CEQA, (2) violations of the Planning and Zoning Law (Gov. Code, § 65000 et seq.), (3) violations of the California Water Code, (4) a pattern and practice by County of inadequately evaluating cumulative impacts of development in southeastern Madera County, and (5) a violation of the general plan and Government Code section 65352.3.
Defendants won the fifth cause of action when the superior court sustained their demurrer to that claim. The fourth, or "pattern and practice," cause of action was separated from this lawsuit when the superior court ordered it severed and assigned it a unique case number.
In September 2009, the superior court held a hearing on the merits of the remaining three causes of action. At the close of the hearing, the court stated its conclusion that the EIR, as an informational document, was inadequate because it did not discuss issues that caused uncertainty about the project's water supply. Based on this inadequacy, the court stated it would order decertification of the EIR and direct County to vacate any entitlements approved on the basis of the EIR.
On October 26, 2009, the trial court filed its written decision in the form of a judgment granting and denying the petition for writ of mandamus. Paragraph No. 4 of the judgment stated the writ of mandamus was granted as to the issue of water supply. Paragraph No. 5 of the judgment stated: "In all other respects, the Petition is denied and judgment is entered in favor of [defendants]." Paragraph No. 6 of the judgment stated: "A Peremptory Writ of Mandamus shall therefore issue commanding [County] to decertify the EIR, vacate and set aside the Project Entitlements, and remedy the deficiency in the EIR identified above before certifying the EIR in accordance with CEQA and approving the other Project Entitlements."
The last paragraph of the judgment stated that any claim for an award of costs or attorney fees would be determined by the superior court upon a separate posttrial motion.
In December 2009, the superior court decided defendants' motion to tax costs. Pursuant to its discretionary authority under Code of Civil Procedure section 1032, subdivision (a)(4), the court divided plaintiffs' costs equally between plaintiffs and defendants and ordered defendants to remit $5,725.86 to plaintiffs. The appeal on the merits included issues relating to the award of costs. Because of the greater success achieved on appeal, we vacated the superior court's order and remanded for it to redetermine the amount of costs awarded. (Madera Oversight Coalition, Inc. v. County of Madera (Sept. 13, 2011, F059153) ___ Cal.App.4th ___.)
Also in December 2009, plaintiffs filed a motion for attorney fees pursuant to section 1021.5. The motion requested a total of $460,994.11, a figure derived by applying a 1.5 multiplier to a claimed amount of $307,329.41. The motion asserted Patience Milrod spent 544.9 hours on the matter and her reasonable hourly rate was $350 (totaling $190,715). It also asserted Sara Hedgpeth-Harris spent 287.1 hours on the matter and her reasonable hourly rate was $300 per hour (totaling $86,130). The motion also requested $125 per hour for the 110.3 hours expended by Preston Van Camp, $100 per hour for nine hours spent by legal assistant Erica Hernandez drafting pleadings, $15,756.91 in costs, and a $40 filing fee for the attorney fees motion.
We note, for the sake of transparency, that the declaration of Sara Hedgpeth-Harris in support of the motion for attorney fees states that she worked at the Fifth Appellate District from 1986 to 1999 and her responsibilities as a research attorney included CEQA cases. Her time at this court, however, did not overlap with any justice assigned to this panel. Also, we note that the motion for attorney fees was supported by a declaration from Nickolas J. Dibiaso, a former justice of this court.
A July 2009 declaration of Preston Van Camp supporting a motion to augment filed in the superior court stated: "I am a Project Manager with Revive the San Joaquin, a ... Plaintiff, in the within matter."
Defendants opposed the motion, asserting that plaintiffs were not entitled to attorney fees under section 1021.5 or, alternatively, that an award of fees should be reduced significantly to reflect the minor degree of success achieved.
The superior court held a hearing on the motion for attorney fees on February 1, 2010. During the hearing, the court made clear its understanding that it had the discretion to apportion the attorney fees claimed between the successful and unsuccessful parts of the litigation.
In its order dated February 22, 2010, the superior court determined that reasonable attorney fees for Patience Milrod's work was $190,715 based on its findings that her reasonable hourly rate was $350 and that the 544.9 hours claimed for her work was reasonable. Also, the court determined that reasonable attorney fees for Sara Hedgpeth-Harris's work was $86,130 based on its findings that her reasonable hourly rate was $300 and that the 287.1 hours claimed for her work was reasonable. These rates and hours were the amounts claimed by each attorney. The court declined to apply a multiplier and did not award any other amounts claimed.
In March 2010, defendants filed a timely appeal of the order awarding attorney fees. Plaintiffs did not file a cross-appeal.
The related appeal and cross-appeal in the underlying CEQA proceeding, case No. F059153, was argued before this court on the same day as the oral argument in this appeal. In a published decision, we affirmed the trial court's issuance of a writ of mandate directing County to cure deficiencies in the EIR's analysis of the project's water supply. Also, we reversed the trial court's denial of other CEQA claims, concluding that the writ of mandate also should direct County to cure deficiencies in the EIR's analysis of cultural resources, traffic and cumulative impacts. (See Madera Oversight Coalition, Inc. v. County of Madera, supra, ___ Cal.App.4th ___.)
The additional relief obtained by plaintiffs in the appeal of the writ proceeding was not a basis for our decision in this appeal to affirm the trial court's decision regarding attorney fees.
DISCUSSION
I. Standard of Review
Both sides to this appeal assert that the abuse of discretion standard of review applies. We agree, subject to the following qualifications.
The normal standard of review for an award of attorney fees under section 1021.5 is abuse of discretion. (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175.) This deferential standard of review applies where factual questions predominate the motion for an award of attorney fees. Situations arise, however, where the decision on the motion for attorney fees is based on the construction and application of the statutory criteria to facts that are largely undisputed. (Ibid.) Those situations involve a question of law and are subject to de novo review by the appellate court. (Id. at pp. 1175-1176; see Protect Our Water v. County of Merced (2005) 130 Cal.App.4th 488, 497 [this court reversed trial court, concluding as a matter of law that all criteria for award of attorney fees under § 1021.5 had been satisfied].)
II. Judicial Notice
Prior to oral argument, we notified the parties by letter that we intended to take judicial notice of the entire appellate record in case No. F059153, and we gave them an opportunity to respond. (Evid. Code, §§ 459, subd. (c), 455, subd. (a).) The written responses of the parties stated they had no objections.
We now grant our own motion for judicial notice of the entire appellate record from case No. F059153, which includes our published decision. Our motion is similar to motions we have granted in other appeals. (E.g., Smith v. Selma Community Hospital (2010) 188 Cal.App.4th 1, 45 [in appeal of attorney fees order, court took judicial notice of entire appellate record from prior appeal on the merits]; Wagner Farms, Inc. v. Modesto Irrigation Dist. (2006) 145 Cal.App.4th 765, 768, fn. 3 [appeal concerning award of costs].)
III. Overview of Section 1021.5
Section 1021.5 codifies California's version of the private attorney general doctrine, which is an exception to the usual rule that each party bears its own attorney fees. (Olson v. Automobile Club of Southern California (2008) 42 Cal.4th 1142, 1147.) The purpose of the doctrine is to encourage suits enforcing important public policies by providing substantial attorney fees to successful litigants in such cases. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 565.) The portion of section 1021.5 relevant to this appeal states:
"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."
To summarize this statutory language, a superior court may award attorney fees to (1) a successful party in any action (2) that has resulted in the enforcement of an important right affecting the public interest (3) if a significant benefit has been conferred on the general public or a large class of persons, and (4) the necessity and financial burden of private enforcement are such as to make the award appropriate.
Because the Legislature linked the criteria in section 1021.5 with the word "and," courts have interpreted section 1021.5 to require that each criterion be satisfied to justify an award of attorney fees. (County of Colusa v. California Wildlife Conservation Bd. (2006) 145 Cal.App.4th 637, 648.) Thus, to win their appeal, defendants need only demonstrate that one of the enumerated criteria was not satisfied in this case.
IV. Application of Statutory Criteria
A. Successful Party
Determining whether a party is "successful" for purposes of section 1021.5 requires an analysis of the surrounding circumstances of the litigation and a pragmatic assessment of the gains achieved by a particular action. (Protect Our Water v. County of Merced, supra, 130 Cal.App.4th at p. 493.)
In this case, plaintiffs obtained a judgment (1) indicating that County had violated CEQA because the EIR's discussion of issues concerning the project's water supply was inadequate and (2) stating a peremptory writ of mandamus "shall ... issue commanding [County] to decertify the EIR, vacate and set aside the Project Entitlements, and remedy the deficiency in the EIR .... "
It is settled that a party need not prevail on every claim presented in the lawsuit to be considered a "successful party" for purposes of section 1021.5. (Wallace v. Consumers Cooperative of Berkeley, Inc. (1985) 170 Cal.App.3d 836, 846.) "[W]hen a plaintiff is successful within the meaning of [section 1021.5], the fact that he or she has prevailed on some claims but not on others is a factor to be considered in determining the amount of the fee awarded." (Id. at pp. 846-847.)
The superior court's determination that plaintiffs were "a successful party" for purposes of section 1021.5 is supported by plaintiffs' victory on the water supply issue, the judgment entered by the court, and the commands in the peremptory writ of mandate. Further support is provided by the superior court's finding that the primary objective of the litigation was probably decertification of the EIR, which plaintiffs achieved.
"In most instances, a successful challenge against a proposed development, whether public or private, based on the absence of an adequate EIR, will qualify for the award of fees under [the private attorney general] theory." (9 Miller & Starr, Cal. Real Estate (3d ed. 2001) § 25A:24, p. 25A-140.)
The cases relied upon by defendants for the proposition that the vacation of project approvals does not satisfy the element of success all involve situations where the trial court exercised its discretion to deny the motion for attorney fees. They are not cases in which the trial court awarded attorney fees and was reversed for abusing its discretion.
Defendants did cite Karuk Tribe of Northern California v. California Regional Water Quality Control Bd., North Coast Region (2010) 183 Cal.App.4th 330, a case in which the trial court's award of attorney fees under section 1021.5 was reversed. That case, however, is distinguishable from the present appeal because (1) it was not a CEQA matter, (2) the fuller explanation to be provided by the defendant board on remand did not involve an EIR or similar informational document designed to inform decisionmakers and the public prior to the approval of a project, and (3) the plaintiffs in that case did not request the relief granted—remand to the board with directions to provide a fuller explanation of its decision. (Karuk Tribe of Northern California, at p. 366.)
For example, in Concerned Citizens of La Habra v. City of La Habra (2005) 131 Cal.App.4th 329 (Concerned Citizens of La Habra), a citizens group challenged the city's approval of construction of a Costco warehouse facility, alleging six causes of action including one for CEQA violations. The CEQA cause of action asserted several CEQA defects and the trial court determined only one had merit. (Concerned Citizens of La Habra, at p. 331.) Specifically, the trial court concluded that the evidence and analysis underlying the conclusion that the impact of potential cut-through traffic would be insignificant was inadequate. (Id. at p. 333.) Thus, the court concluded the mitigated negative declaration needed revision and rescinded approval of the project until the revisions were made. (Id. at pp. 331-332.)
Subsequently, the trial court denied the citizens group's motion for attorney fees, and the appellate court upheld the denial. (Concerned Citizens of La Habra, supra, 131 Cal.App.4th at p. 332.) The trial court stated that the citizens group was only successful in one small regard, was unsuccessful on all significant issues, and there were no significant benefits derived by a large number or class of people. (Id. at p. 333.) The court of appeal upheld the denial of attorney fees on the ground that the trial court did not abuse its discretion in determining that the benefit gained by the litigation was not significant and widespread. (Id. at pp. 335-336.) Neither the trial court nor the appellate court concluded that the partial success achieved by the citizens group was insufficient to qualify it as a "successful party" for purposes of section 1021.5. The attorney fees motion was decided on other grounds. Therefore, Concerned Citizens of La Habra does not support the proposition that we can conclude as a matter of law that plaintiffs' lawsuit was unsuccessful for purposes of section 1021.5.
Similarly, the other cases cited by defendants were not decided on the grounds that winning only one of several alleged CEQA violations justifies the conclusion that the party bringing the lawsuit was not a "successful party" for purposes of section 1021.5. In Terminal Plaza Corp. v. City and County of San Francisco (1986) 177 Cal.App.3d 892, the city failed to comply with CEQA in enacting an ordinance—a defect that was cured by reenacting the ordinance after an environmental evaluation and issuing a negative declaration. The court of appeal concluded the benefit to the public of the threshold environmental review and issuance of the negative declaration was minimal and affirmed the denial of attorney fees. (Id. at pp. 913-914.) In Stevens v. City of Glendale (1981) 125 Cal.App.3d 986, the court of appeal stated the appellants "prevailed only on a technical point of lack of public notice on the final EIR" and concluded: "[I]t cannot be said that a significant benefit has been conferred on the general public or a large class of persons." (Id. at p. 1000.) Thus, neither of these cases was decided under the "successful party" criterion.
We conclude that concerns about the extent of plaintiffs' success, particularly where an EIR has been decertified and the project approvals vacated, are considerations best addressed in connection with section 1021.5's other criteria. In other words, we will not conflate the "enforcement of an important right affecting the public interest" and the "significant benefit" criteria with the "successful party" criterion.
B. Important Right Affecting the Public Interest
The California Supreme Court addressed the meaning and application of section 1021.5's "important right" criterion in Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917 (Woodland Hills). The court endorsed the following principles. First, both constitutional and statutory rights are capable of qualifying as "important" for purposes of section 1021.5, but not all statutory rights are important. Second, section 1021.5 "directs the judiciary to exercise judgment in attempting to ascertain the 'strength' or 'societal importance' of the right involved." (Woodland Hills, at p. 935.) Third, the importance of a particular right generally can be determined by realistically assessing the significance of that right in terms of its relationship to the achievement of fundamental legislative goals. (Id. at p. 936.)
The Supreme Court provided context for the foregoing principles by observing that important rights are not confined to any one subject or field and noting that the private attorney general doctrine has been applied properly in litigation involving various fields, including environmental protection. (Woodland Hills, supra, 23 Cal.3d at p. 936.) Seven years after the Woodland Hills decision, the Sixth Appellate District considered the field of environmental protection and CEQA in particular: "It is well settled that the private attorney general theory applies to an action to enforce provisions of CEQA. [Citations.]" (City of Carmel-By-The-Sea v. Board of Supervisors (1986) 183 Cal.App.3d 229, 254.) This view was reiterated by the Fourth Appellate District last year in conjunction with a statement that lawsuits enforcing the provisions of CEQA have been held to involve important rights affecting the public interest. (Center for Biological Diversity v. County of San Bernardino (2010) 185 Cal.App.4th 866, 892-893 (Biological Diversity I), and cases cited therein; see Concerned Citizens of La Habra, supra, 131 Cal.App.4th at p. 335 ["CEQA involves important rights affecting the people of this state"].)
While these general statements regarding the importance of the rights and requirements set forth in CEQA provide useful background, no decision has gone so far as to hold that all of the provisions in CEQA create "important rights" for purposes of section 1021.5. Therefore, a separate evaluation of the importance of the particular CEQA right or rights violated must be undertaken. Trial courts performing this evaluation must consider the right in terms of its relationship to the achievement of fundamental legislative goals. (Woodland Hills, supra, 23 Cal.3d at p. 936.)
From a general perspective, this case involves the CEQA requirement that the decisionmakers and public be provided with an adequate EIR. From a more detailed perspective, it involves the requirement for an adequate discussion of issues concerning the project's water supply. Consequently, we will evaluate how having an adequate EIR and having an adequate discussion of issues concerning the project's water supply relate to fundamental legislative goals.
There can be little doubt that a legally sufficient EIR bears a strong relationship to the achievement of the fundamental legislative goals underlying CEQA. CEQA itself states that an EIR "is an informational document" the purpose of which is to "provide public agencies and the public in general with detailed information about the effect which a proposed project is likely to have on the environment; to list ways in which the significant effects of such a project might be minimized; and to indicate alternatives to such a project." (Pub. Resources Code, § 21061.) In section 21002, the Legislature explicitly identified the intent underlying the procedures required by CEQA: "to assist public agencies in systematically identifying both the significant effects of proposed projects and the feasible alternatives or feasible mitigation measures which will avoid or substantially lessen such significant effects." In the next section of CEQA, the Legislature reiterated the purpose of an EIR: "to identify the significant effects on the environment of a project, to identify alternatives to the project, and to indicate the manner in which those significant effects can be mitigated or avoided." (§ 21002.1, subd. (a).)
These legislative statements of the purpose and intent underlying the EIR requirement are reflected in the CEQA case law. Nearly 40 years ago, the California Supreme Court described the preparation of an EIR as "the key to environmental protection under CEQA ...." (No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 75.) Our Supreme Court has "repeatedly recognized that the EIR is the 'heart of CEQA.'" (Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1123.) The EIR provides the public and government agencies with necessary information and thereby protects both the environment and informed self-government. (Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351, 1392.)
The foregoing statutory provisions and statements from case law support the general proposition that, when a court requires the preparation of a legally adequate EIR, it is enforcing an important requirement of CEQA affecting interests the public holds in environmental protection and informed self-government. It is within this context that we consider the relationship of the EIR's discussion of the water supply issues to fundamental legislative goals.
The Legislature has addressed the topic of water—specifically, a project's supply of and demand for water—and how it should be discussed in an EIR. Public Resources Code section 21151.9 provides that when a CEQA project exceeds certain statutory thresholds related to water demand, the lead agency "shall comply" with certain provisions of the Water Code. Water Code section 10910 requires a city or county considering a project exceeding the thresholds to obtain a written assessment of water supply and demand. It also specifies the contents of the written assessment. The requirement for a written water assessment is connected to CEQA's requirement for an EIR by Water Code section 10911, subdivision (b), which directs the city or county to include the water assessment document in the project EIR. (See also Cal. Code Regs., tit. 14, § 15155, subd. (e) [lead agency shall include water assessment in the EIR].)
Those provisions are sections 10910 through 10915 of the Water Code, which comprise part 2.10 of division 6 of the Water Code. Part 2.10 is labeled "Water Supply Planning to Support Existing and Planned Future Uses."
The written assessment shall identify "any existing water supply entitlements, water rights, or water service contracts relevant to the identified water supply for the proposed project (Wat. Code, § 10910, subd. (d)(1).) In addition, it shall include information related to "[w]ritten contracts or other proof of entitlement to an identified water supply" and "[a]ny necessary regulatory approvals that are required in order to be able to convey or deliver the water supply." (Id., subd. (d)(2)(A), (D).)
Based on Public Resources Code section 21151.9 and the foregoing provisions of the Water Code, we conclude that the right of decisionmakers and the public to full disclosure of information regarding the certainty of the project's proposed water supply bears a strong relationship to the legislative goals of environmental protection and informed self-government. Therefore, we conclude that the trial court correctly ascertained the "strength" or "societal importance" of the right involved when it decided to award attorney fees under section 1021.5. (See Kostka & Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2d ed. 2011) § 23.128 ["important public right" criterion considers the nature of the statutory violation].)
We note that defendants have argued that "there is no evidence that such information will prove to be of any importance in the context of the impacts addressed by the EIR." This argument is misguided in that it does not use the test for importance identified by our Supreme Court. Defendants have not addressed the significance of the right to be informed about uncertainty in the proposed water supply in terms of its relationship to the achievement of fundamental legislative goals. (Woodland Hills, supra, 23 Cal.3d at p. 936.) Instead, defendants again conflate the element under consideration here—"importance"—with the question of "significant benefit."
C. Significant Benefit to the Public
Defendants contend the award of attorney fees must be overturned because plaintiffs "presented no evidence that the purported benefits of the litigation were sufficiently widespread or significant to merit an award of attorneys' fees."
Plaintiffs contend that there is a reasonable basis in the record supporting the trial court's finding that the litigation conferred a significant benefit on the general public.
1. Procedural posture when attorney fees awarded
Our analysis of the benefit conferred by the litigation begins by recognizing the procedural posture of this case and the implications of that posture on the application of section 1021.5.
This case had not been completed when the motion for attorney fees was decided. The October 2009 judgment required a return to the writ be filed within 180 days from the date of the judgment. No return had been filed when the motion for attorney fees was heard in February 2010. Moreover, the appeal and cross-appeal on the merits automatically stayed the judgment as well as the operative force of the writ. (Code Civ. Proc., § 1110b; 1 Cal. Civil Writ Practice (Cont.Ed.Bar 4th ed. 2011) § 11.24, p. 260 [order granting writ of mandate is stayed on appeal unless court orders otherwise].)
A practical implication of this procedural status is that the final outcome of the litigation was not known when the superior court decided the motion for attorney fees. (Cf. Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173 [trial court entered judgment after return of writ was filed and reapproval of housing project was upheld; motion for attorney fees was filed following return of writ].) Furthermore, this court's review of the award of attorney fees must be completed without knowing the action that County will take to comply with the writ of mandate. (See Biological Diversity I, supra, 185 Cal.App.4th at p. 895 [actual effect of writ of mandate on final EIR unknown at time of attorney fees motion].) As observed by the superior court during the hearing on the motion to tax costs, County might decide not to proceed with the project or it might discuss the issues relating to the holding contract and recertify the EIR.
The lack of a final outcome is apparent in the arguments presented by the parties. For example, defendants argue that uncertainty concerning the water supply provided by the holding contract "does not involve a statewide, or even a countywide, issue. More discussion of the legal issues will not change the project. No doubt exists as to the physical availability of water for the Project and the County found no adverse impact on water resources based on substantial evidence ...." We note that, despite the absence of a final outcome to this litigation, this argument assumes a favorable outcome for the real parties in interest; namely, the preparation of additional discussion and the reapproval of the project.
2. Application of abuse of discretion standard
When asserting a trial court abused its discretion in deciding a motion, the burden of demonstrating error is on the appellant because appellate courts presume the trial court's order is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Under this principle of appellate review, when the appellate record is silent on a matter, the reviewing court must indulge all intendments and presumptions that support the trial court's order regarding attorney fees. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140.)
Here, in an effort to demonstrate an abuse of discretion in awarding attorney fees, defendants argue that "compliance with the trial court's ruling mandates only a pro forma exercise of summarizing [Professor] Sax's findings, along with contrary views, and further discussion of alternatives if the contract is adjudged defective." Elsewhere defendants argue: "The deficiency found by the trial court below is easily remedied and unlikely to change the Project, as the trial court conceded. (RT IIIB:765)"
Defendants' reference to page 765 of volume IIIB of the reporter's transcript from the appeal on the merits does not support their claim of a concession by the trial court. Page 765 of that volume is the certification of the transcript by the certified shorthand reporter. (See Cal. Rules of Court, rule 8.204(a)(1)(C) [supporting references to the record].)
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In making these arguments, defendants have turned the principle that we must indulge all intendments and presumptions in support of the trial court's order on its head. Their theory of trial court error presumes (i.e., predicts or forecasts) future occurrences will be favorable to them—such as the likelihood of changes to the project and the way in which elected officials will vote. Like the courts in Biological Diversity I, supra, 185 Cal.App.4th 866 and RiverWatch v. County of San Diego Dept. of Environmental Health (2009) 175 Cal.App.4th 768, we are unconvinced by arguments that the project is unlikely to change as a ground for reversing the trial court. In Biological Diversity I, the court stated that the substantial benefit criterion was not based on speculative future events, but on the benefits from the decision of the court. The court concluded that the residents potentially affected by the proposed project would benefit from a more in-depth CEQA review, notwithstanding the ultimate outcome. (Biological Diversity I, supra, at p. 895.)
In this case, the trial court impliedly found that the potential residents of the proposed development as well as the residents of the surrounding communities would have benefited from a more in-depth disclosure and analysis of the issues regarding the certainty of the project's water supply. (Woodland Hills, supra, 23 Cal.3d at p. 939 [effectuation of statutory policy may constitute a significant benefit].) Part of that benefit includes a better informed board of supervisors and a better informed public. Furthermore, contrary to defendants' assertion, the trial court's decision may produce a county-wide benefit in that County may be less inclined, in the consideration and preparation of EIR's for future projects, to engage in selective disclosure and omit information that is unfavorable to the proposed project.
In summary, defendants have failed to show the trial court abused its discretion in finding that the litigation conferred a substantial benefit on the public.
D. Necessity and Financial Burden
The necessity and financial burden element really involves two separate issues. (Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1214.) The first issue, whether private enforcement was necessary, looks at the adequacy of public enforcement to vindicate the public rights in question. (Id. at pp. 1214-1215.) The second issue concerns whether the financial burden of private enforcement warrants subsidizing the successful party's attorneys. (Id. at p. 1214.)
1. Necessity
Here, the necessity of private enforcement is readily apparent. The record supports the superior court's implied finding that public enforcement was not available. First, County, a governmental entity responsible for preparing a legally adequate EIR, was a defendant in this lawsuit. Second, the Attorney General did not prosecute or intervene in this lawsuit. These facts support the trial court's determination that there was no possibility of public enforcement or the vindication of the public rights by governmental action. (Conservatorship of Whitley, supra, 50 Cal.4th at p. 1215; see Woodland Hills, supra, 23 Cal.3d at p. 941 [citizen group challenged city's approval of subdivision map approval; private enforcement necessary through lawsuit brought against governmental agency responsible for approval].)
Defendants' assertion that plaintiffs failed to demonstrate necessity because they made no efforts to settle the dispute regarding the EIR's discussion of water supply is not an argument that compels reversal. (Vasquez v. State of California (2008) 45 Cal.4th 243, 251-252 [§ 1021.5 does not require prelitigation settlement attempts in noncatalyst cases].) First, the law does not require such an attempt in a noncatalyst case such as this. (Vasquez, at p. 257.) Second, the superior court's order necessarily includes an implied finding of fact that reasonable efforts by plaintiffs prior to filing the lawsuit would not have settled that dispute. (Id. at p. 252; see Denham v. Superior Court, supra, 2 Cal.3d at p. 564 [when the appellate record is silent on a matter, the reviewing court must indulge all intendments and presumptions that support the order].) We are in no position to reverse that implied finding of fact by the trial court because, among other things, defendants' appellate brief references no evidence in the record that shows such a settlement was possible. (See Denham, at p. 564 [appellant must affirmatively demonstrate error].) Consequently, we will accept the superior court's implied finding and reject defendants' assertion of fact to the contrary.
2. Financial burden
The question regarding the financial burden of private enforcement requires courts to examine the financial burdens and incentives involved in bringing the lawsuit. (Conservatorship of Whitley, supra, 50 Cal.4th at p. 1215.) More specifically, they look at "the costs of the litigation [and] any offsetting financial benefits that the litigation yields or reasonably could have been expected to yield." (Ibid.) This cost-benefit analysis seeks to determine whether the financial burden of the lawsuit was out of proportion to the plaintiffs' individual stake in the matter. (Ibid.)
The California Supreme Court has adopted a specific methodology for performing this cost-benefit analysis. (Conservatorship of Whitley, supra, 50 Cal.4th at pp. 1215-1216, citing Los Angeles Police Protective League v. City of Los Angeles (1986) 188 Cal.App.3d 1, 9-10.) The benefits of the litigation are determined by estimating the value of the case to plaintiffs at the time the vital litigation decisions were being made. (Conservatorship of Whitley, supra, at p. 1215.) This involves estimating the monetary value of the benefits obtained and discounting that number by an estimate of the probability of success at the time the vital litigation decisions were made. (Ibid.) The costs portion of the cost-benefit analysis is based on the actual costs of the litigation, which include attorney fees, deposition costs, expert witness fees, and other expenses required to bring the case to fruition. (Id. at pp. 1215-1216.) The final step in the cost-benefit analysis is to compare the estimated value of the case against the actual cost and make a value judgment whether it is desirable to encourage litigation of that sort by providing a bounty. When the estimated value of the litigant's own monetary reward exceeds by a substantial margin the actual costs of the litigation, a bounty is not appropriate. (Id. at p. 1216.)
Defendants address the financial burden and benefits of this lawsuit with the following argument:
"[Plaintiffs'] litigation was financed by grants obtained from the Rose Foundation's Fund with money obtained from settlement of a similar prior lawsuit never litigated. [Plaintiffs] cannot therefore show that the cost of their legal victory imposed any financial burden on them or transcended their personal stake as public interest organizations in restoring the Fund in order to carry out more litigation and other activities in pursuit of their agenda."
Defendants also argue that the Rose Foundation Fund's commitment of $169,500 to finance the litigation precludes plaintiffs from showing that enforcement was economically infeasible. They further assert that plaintiffs are the largest recipients of grant money from the fund and, consequently, have a personal financial interest in the outcome of this litigation.
Defendants' arguments fail to demonstrate that the trial court committed reversible error because, among other things, defendants have not employed the cost-benefit methodology endorsed by our Supreme Court. Specifically, defendants have made no showing regarding the estimated value of the case at the time vital litigation decisions were being made. (Conservatorship of Whitley, supra, 50 Cal.4th at p. 1216.) They have not provided an estimate of the monetary value of the benefits obtained from the litigation or of the probability of success. Moreover, even if we were to overlook these omissions by defendants and undertake our own calculation of the estimated value of the case to plaintiffs, the evidence in the record does not support the inference that plaintiffs derived any monetary value from the relief obtained in the lawsuit (i.e., the issuance of the writ and decertification of the EIR).
Finally, defendants' assertion of fact that one or more plaintiffs have a personal interest in recovering attorney fees makes little sense in view of the applicable legal principles. Under the cost-benefit analysis adopted by our Supreme Court, the recovery of attorney fees is not among the legally relevant financial benefits that are balanced against the costs of the litigation. In other words, we reject the circular reasoning inherent in defendants' position that the financial benefit of the attorney fee award justifies denying the request for attorney fees.
V. Amount of Attorney Fees Awarded
Defendants argue that the lodestar amount awarded by the superior court is excessive and unreasonable on the ground that the fees should have been reduced to an amount roughly proportional to the success achieved in the lawsuit. In response, plaintiffs argue that the trial court did not abuse its discretion in refusing to reduce the fee award because of plaintiffs' partial success.
We will review the trial court's determination of the amount of attorney fees to determine if the court followed the applicable principles of law, and we will consider whether the amount awarded falls within the range of possible outcomes committed to the trial court's discretion. (Department of Parks & Recreation v. State Personnel Bd. (1991) 233 Cal.App.3d 813, 831 [an "abuse of discretion standard ... measures whether, given the established evidence, the act of the lower tribunal falls within the permissible range of options set by the legal criteria"].)
First, when determining the amount of attorney fees to award under section 1021.5, courts begin with the lodestar figure. (Graham v. DaimlerChrysler Corp., supra, 34 Cal.4th at p. 579.) The lodestar figure is calculated by multiplying the hours reasonably expended by the attorney by that attorney's reasonable hourly rate. (Ketchum v. Moses, supra, 24 Cal.4th at p. 1134.) The trial court was aware of the foregoing rules of law and applied them. During the hearing on the motion for attorney fees, the court expressly stated it would begin with the lodestar method. Its written order includes its determination as to hours and rates.
Next, the lodestar figure may "be increased or reduced by the application of a 'multiplier' after the trial court has considered other factors concerning the lawsuit." (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 322, fn. omitted.) Here, the superior court undertook this step. It considered plaintiffs' argument that a multiplier should be used to increase the fee award, and it considered defendants' argument that the fee award should be reduced. Furthermore, comments made by the court during the motion hearing indicate the court was aware that a type of double counting could occur if factors used to determine the reasonable hourly rate were reused to justify a multiplier.
In considering defendants' argument for a reduction in the award of fees, the superior court expressly stated its view that it had the discretion to apportion, that is, reduce the fees awarded to reflect plaintiffs' partial success. Again, the court correctly identified the applicable legal principle. As stated by the court in Biological Diversity I, supra, 185 Cal.App.4th at page 897: "While a court has discretion to reduce fees [awarded] in a CEQA case based on degree of success [citation], it is, of course, not required to do so." Furthermore, "a court is not required to follow a formulaic reduction in CEQA cases based on the number and percentage of unsuccessful claims raised." (Id. at p. 898.)
Our review of the reporter's transcript of the hearing and the superior court's written order has located no instance in which the court failed to follow the applicable rules of law governing an award of attorney fees under section 1021.5. Consequently, this case need not be remanded for application of the correct rules of law. In addition, we conclude that the amount of the attorney fees awarded was within the range established by the discretionary authority granted to the superior court. As a result, we find no abuse of discretion in the amount awarded.
DISPOSITION
The superior court's order granting plaintiffs' motion for attorney fees is affirmed. Plaintiffs shall recover their costs on appeal.
DAWSON, J.
WE CONCUR:
CORNELL, Acting P.J.
GOMES, J.