ANIMAL PROTECTION AND RESCUE LEAGUE et al., Plaintiffs and Respondents, v. CITY OF SAN DIEGO et al., Defendants and Appellants.
No. D065178
Fourth Dist., Div. One.
May 27, 2015.
237 Cal. App. 4th 99
[CERTIFIED FOR PARTIAL PUBLICATION*]
Jan I. Goldsmith, City Attorney, and George F. Schaefer, Deputy City Attorney, for Defendants and Appellants.
Law Office of Bryan Pease, Bryan W. Pease; Law Offices of Todd T. Cardiff and Todd T. Cardiff for Plaintiffs and Respondents.
OPINION
AARON, J. -—
I.
INTRODUCTION
The primary issue we must decide in this appeal is whether a municipality may be considered an “opposing part[y]” for purposes of the private attorney general fee statute (
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Respondents’ petition for writ of mandate and appellants’ confession of error
In November 2012, respondents Animal Protection and Rescue League, Friends of the Seals, Ellen Shively, Deborah Saracini, Shannon Player, Robb Meade, Marilies Schoepflin, Dorota Valli, and Jerry Horna (collectively APRL) brought a petition for writ of mandate against appellants City of San Diego and its planning commission (the City),2 coupled with a request for injunctive and declaratory relief. In its petition, APRL noted that the present litigation was related to a long-running dispute concerning whether the City should maintain a year-round guideline rope at the La Jolla Children‘s Pool for the purpose of protecting harbor seals from humans. APRL sought an order requiring the City to vacate and set aside the planning commission‘s denial of a permit for the guideline rope and to reinstate the findings of a hearing officer in support of the permit.
Approximately three months later, the City filed an answer in which it confessed error and conceded that the “Planning Commission erred when it denied the Site Development Permit for an annual rope barrier.” The City stated that it did “not oppose lawful writ relief, including a Court order directing that the denial of a Site Development Permit be set aside.”
B. Friends of the Children‘s Pool‘s participation in the case
On March 12, 2013, APRL filed an ex parte application for an order to show cause seeking entry of judgment in the case. In the application, APRL stated that “[b]ecause related case Friends of Children‘s Pool v. City of San Diego, case number 37-2013-0003894-CU-WM-CTL will be made moot by APRL‘s writ petition being granted, this party [(Friends of the Children‘s Pool)] will likely wish to be heard as well.” The following day, the trial court held a hearing on APRL‘s application and granted Friends of the Children‘s
APRL filed a motion for entry of judgment on its writ petition on March 20.
FOCP filed an opposition to APRL‘s motion for entry of judgment on March 29. That same day, the City filed a nonopposition to APRL‘s motion for entry of judgment in which it noted its confession of error, and stated, “City therefore does not oppose [APRL‘s] motion for entry of judgment granting writ relief.”
A few days later, FOCP filed an ex parte application for leave to file a complaint in intervention. APRL filed an opposition and the trial court held a hearing on the application. At the hearing, the City orally opposed FOCP‘s application to intervene. The trial court denied FOCP‘s request to intervene in the case as a party, but indicated that it would consider FOCP‘s opposition to the motion for entry of judgment as an amicus curiae brief.
The City filed a reply to FOCP‘s amicus curiae brief in which it further explained the basis for its confession of error, and APRL filed a reply brief in support of its motion for entry of judgment.
C. The trial court‘s order and judgment granting the writ of mandate
The trial court held a hearing on APRL‘s motion for entry of judgment at which APRL, FOCP, and the City appeared. At the conclusion of the hearing, the trial court entered an order granting APRL‘s petition for writ of mandate. The trial court then entered a judgment granting APRL‘s petition for writ of mandate and issued a corresponding peremptory writ of mandate.
D. APRL‘s motion for attorney fees
APRL filed a motion requesting an award of private attorney general fees in the amount of $123,243.753 against the City pursuant to
The City opposed the motion for attorney fees on the ground that the City was “never an opposing party” because it had “confessed error at the inception of [the] case.” The City also argued that APRL was not entitled to any fees for 58.8 hours of work that the City claimed APRL‘s attorneys had performed in APRL v. Sanders because, it claimed, that work was “not useful or necessary to... success in the present action.” The City maintained that APRL‘s request for costs was improper because APRL had failed to file a memorandum of costs, as required.
APRL filed a reply in which it clarified the basis for its request of an award of attorney fees for the 58.8 hours of work performed prior to the filing of the petition in this case to which the City had raised an objection. APRL contended that 35.05 of the 58.8 hours were spent exclusively on preparation and research for the current writ action and 23.75 were spent on tasks performed in APRL v. Sanders that were inextricably intertwined with the present action. APRL presented a chart demonstrating 14 time entries detailing the tasks performed in the APRL v. Sanders case that it contended were related to this case, and argued that it was not seeking fees for “other outside issues also raised in APRL v. Sanders.”
E. The trial court‘s attorney fee and cost order
After a hearing, the trial court entered an order on November 13 awarding APRL $82,717.50, including $82,162.50 in attorney fees and $555 in costs. The court reasoned in part: “Although the City filed a non-opposition to [APRL‘s] motion for entry of judgment in their favor, the City‘s action via the Planning Commission, caused [APRL] to bring the current action. This coupled with the opposition from Amicus [FOCP] is enough to warrant [APRL‘s] reasonable expenses in preparing and bringing the current action. Therefore, [APRL is] entitled to a total of $82,717.50 under [section] 1021.5, reflecting a costs award of $555 and a total of 234.75 billable hours at a rate of $350 per hour. This includes $61,582.50 for the current action, reflecting 175.95 billable hours, and $20,580 for pre-litigation hours, reflecting 35.05
That same day, the court amended the judgment to reflect the award of attorney fees and costs in the amount of $82,717.50.
F. The appeal
The City appeals from the attorney fee order and the amended judgment.
III.
DISCUSSION
A. The trial court properly concluded that the City was an opposing party for purposes of awarding attorney fees pursuant to
The City contends that the trial court erred in concluding that it was an “opposing part[y]” for purposes of awarding attorney fees pursuant to
1. Standard of review
In Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1173 [39 Cal.Rptr.3d 788, 129 P.3d 1] (Connerly), the Supreme Court considered whether an entity called the California Business Council, whose role in the underlying case shared attributes of both an amicus curiae and a real party in interest, was an “opposing part[y]” within the meaning of
“The proper standard of review was set forth in Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132, 142 [118 Cal.Rptr.2d 569]: ‘On review of an award of attorney fees after trial, the normal standard of review is abuse of discretion. However, 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.’
“Here, the question is whether the California Business Council can be assessed attorney fees under section 1021.5 as an ‘opposing part[y]’ within the meaning of that statute. Under some circumstances, this may be a mixed question of law and fact and, if factual questions predominate, may warrant a
In this case, as in Connerly, the issue on appeal is whether an entity may be assessed attorney fees under
2. Governing law
In Connerly, the Supreme Court outlined the meaning of the terms “opposing parties” in
“Because the term ‘opposing parties’ is not defined, it can be assumed that the Legislature was referring to the conventional definition of that term. As we have recognized, the edition of Black‘s Law Dictionary current at the time that section 1021.5 was drafted states that “[p]arty” is a technical term having a precise meaning in legal parlance; it refers to “those by or against whom a suit is brought..., the party plaintiff or defendant ....“’ [Citation.]
“Generally speaking, the opposing party liable for attorney fees under section 1021.5 has been the defendant person or agency sued, which is responsible for initiating and maintaining actions or policies that are deemed harmful to the public interest and that gave rise to the litigation. [Citations.]” (Connerly, supra, 37 Cal.4th at pp. 1176–1177.)
Applying the definition of opposing parties provided in Connerly, the City is the named respondent to APRL‘s writ petition, and, as such, is the entity “against whom [the] suit is brought.” (See Connerly, supra, 37 Cal.4th at p. 1176.) Further, the City, via its planning commission, was the entity “responsible for initiating and maintaining actions or policies... that gave rise to the litigation.” (Id. at p. 1177.) Thus, the City fits squarely within the definition of “opposing party” provided in Connerly. (Id. at p. 1176.)
The City contends that it may not be considered an opposing party because, “at no point in the litigation did the City take a position adverse to [APRL].” (Italics added.) However, as Connerly makes clear, it is generally the entity responsible for the actions “that gave rise to the litigation” that is an opposing party under
Indeed, to hold that an entity may avoid being required to pay an award of attorney fees under
This court‘s decisions in Nestande v. Watson (2003) 111 Cal.App.4th 232 [4 Cal.Rptr.3d 18] (Nestande) and McGuigan v. City of San Diego (2010) 183 Cal.App.4th 610 [107 Cal.Rptr.3d 554] (McGuigan), on which the City relies, do not support the City‘s contention that it was not an “opposing part[y]” under
Applying this definition, the Nestande court concluded that one respondent (Songstad) was not entitled to recover attorney fees from two governmental actors (Lever and Watson) who also had been named as respondents in a lawsuit brought by a third party (Nestande). (Nestande, supra, 111 Cal.App.4th at pp. 240-241.) The Nestande court reasoned in part, “... Lever and Watson were prevailing parties on the same side of the litigation as Songstad, and they were not opposing parties to Songstad.” (Id. at p. 241.)
In contrast to Nestande, in this case, the City‘s position was “adverse to” APRL. (Nestande, supra, 111 Cal.App.4th at p. 241.) Further, unlike in
In McGuigan, this court applied Nestande, among other decisions, in considering whether a municipality, as one of two settling parties defending a settlement in an appeal pursued by third party objectors, could be assessed appellate attorney fees under
This case does not present the “unique procedural context” (McGuigan, supra, 183 Cal.App.4th at p. 618) presented in McGuigan in which one respondent seeks appellate attorney fees from a “fellow respondent” in an appeal brought by a third party. (Id. at p. 629.) In addition, unlike in McGuigan, the City and APRL were not aligned by a settlement that was being attacked in an appeal brought by a third party. Further, we reject the City‘s argument that, viewing the record ‘realistically,” as McGuigan instructs, “the ‘real dispute’ in our case was between [FOCP] and [APRL], with the City indisputably allied with [APRL].” On the contrary, in this case, APRL sued the City seeking an order directing the City to take action, and, after the City confessed error, APRL obtained a judgment against the City. In addition, FOCP is not similarly situated to the objectors in McGuigan, who were parties to the case and who had taken the appeal at issue. In this case, the trial court denied FOCP‘s motion to intervene and FOCP merely had “an ideological or policy interest [in the case] typical of an amicus curiae....” (Connerly, supra, 37 Cal.4th at p. 1181.)
Accordingly, we conclude that the trial court properly determined that the City was an opposing party for purposes of awarding attorney fees pursuant to
IV.
DISPOSITION
The award of $555 in costs in the November 13, 2013 order and amended judgment is stricken, thereby reducing the total award from $82,717.50 to $82,162.50. As so modified, the November 13, 2013 order and amended judgment are affirmed.
In the interests of justice, APRL is entitled to recover its costs on appeal. The matter is remanded to the trial court with directions to award appellate attorney fees to APRL in an amount to be determined by the trial court on remand.
Haller, Acting P. J., and Irion, J., concurred.
*See footnote, ante, page 99.