Opinion
Coalition for a Sustainable Future in Yucaipa (Coalition) filed a petition for writ, of mandate against the City of Yucaipa and its city council (collectively Yucaipa) challenging Yucaipa’s approval of Oak Hills Marketplace (Project), a shopping center to be developed by Target Corporation (Target) on acreage owned by Palmer General Corporation (Palmer). That petition, filed pursuant to the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.), was denied, and Coalition appealed that decision. That appeal became moot when Target abandoned the Project due to a contract dispute with Palmer. This court directed that the order denying mandate be reversed with directions to dismiss the action with prejudice due to mootness. Coalition then brought a motion for attorney fees in the trial court, asserting that its petition was the catalyst for Yucaipa’s action to revoke the entitlements. The trial court denied the motion and Coalition appealed again.
BACKGROUND
In May 2005, Target entered into a contract with Palmer, the owner of land in the City of Yucaipa, to develop a shopping center. Under the agreement, Target agreed to purchase approximately 60 acres of the land owned by Palmer, for the Project.
Target applied for a preliminary development plan (PDP) and a general plan amendment for a regional shopping center totaling approximately 613,000 square feet of building space on the acreage. On October 8, 2007, at a meeting of the City Council of the City of Yucaipa (Council), the Council conditionally approved the PDP and general plan amendment to adopt the land use plan for the planned development district, following an environmental impact report (EIR). The Council’s action required that the PDP incorporate certain signage standards and other conditions, and accepted the mitigation measures identified in the final EIR, as well as adoption of a statement of overriding considerations.
Target was unable to complete the purchase of the land because Palmer missed deadlines and failed to complete specified off-site improvements required for the processing of off-site improvement approvals. On October 29, 2007, Target sued Palmer for specific performance, breach of contract, and breach of implied covenant of good faith and fair dealing (Contract Action).
On November 8, 2007, Coalition filed a petition for writ of mandate challenging Yucaipa’s approval of entitlements, asserting they violated CEQA. Target funded and defended this CEQA action on behalf of Yucaipa, pursuant to a condition that it indemnify Yucaipa found in section 81.0150 of the City of Yucaipa’s Development Code, which was included in the conditional approval of the Project.
On October 30, 2008, the trial court issued its ruling on the petition for writ of mandate. The trial court granted both sides’ requests for judicial notice. This included the Council minutes for regular meeting of October 8, 2007, Yucaipa official land use districts map, dated April 24, 2008, general land use element, dated July 2004; City of Yucaipa general plan, housing element, City of Yucaipa general plan, City of Yucaipa general plan table, II-2, official land use districts statistical chart, dated September 28, 1992, Yucaipa Development Code article 2, planned development review, sections
The court found the Project was consistent with the housing element, and Yucaipa did not abuse its discretion in approving the EIR. The court denied the petition for writ of mandate. Judgment was entered accordingly, and Coalition appealed, in
Coalition for a Sustainable Future in Yucaipa v. City of Yucaipa
(2011)
Prior to the filing of the respondent’s brief in that appeal, Yucaipa and Target moved to dismiss the appeal on the ground of mootness.
(Coalition for a Sustainable Future in Yucaipa v. City of Yucaipa, supra,
As a consequence, at a regular Council meeting, Yucaipa revoked the land use entitlements for the Project. The Yucaipa agenda report explains that when Target abandoned the Project, the city attorney sought to determine if Palmer would assume the lead in defending the appeal, but Palmer refused. Because both Target and Palmer had refused to comply with the conditions of approval, the staff had prepared the necessary ordinance and resolution to repeal the general plan land use district change, the PDP, and the certification of the EIR.
This court requested supplemental briefing and issued a published decision in case No. E047624, in which the judgment was reversed as moot, and the trial court was directed to dismiss the underlying action with prejudice.
(Coalition for a Sustainable Future in Yucaipa v. City of Yucaipa, supra,
198
On March 12, 2012, Coalition filed a motion for an award of attorney fees pursuant to Code of Civil Procedure section 1021.5. Coalition argued that the mandamus proceeding was the catalyst for Yucaipa’s action of revoking the land use entitlements, entitling it to attorney fees. On June 4, 2012, the trial court denied the motion for attorney fees after finding that the litigation was not the catalyst for the abandonment of the Project. Instead, the court determined that the evidence showed that the Palmer litigation and the failure to secure the real property on which the Project was to be located were the reasons the developer and Yucaipa elected not to proceed. The order was filed on August 30, 2012.
Coalition has now appealed that order.
DISCUSSION
On appeal, Coalition argues that the court erred in denying its motion for attorney fees because there is insufficient evidence to support the trial court’s finding that the mandamus action was not a catalyst for Yucaipa’s rescission of its approval for the Project. It urges us to find that substantial evidence shows the mandamus proceeding was the catalyst for Yucaipa’s action. We disagree.
a. Standard of Review.
Generally, whether a party has met the statutory requirements for an award of attorney fees is best decided by the trial court, whose decision we review for abuse of discretion.
2
(Ebbetts Pass Forest Watch
v.
Department of Forestry & Fire Protection
(2010)
To determine whether the trial court abused its discretion, we must review the entire record, paying particular attention to the trial court’s stated reasons
The pertinent question is whether the reasons for the trial court’s denial of an award are consistent with the substantive law of the Code of Civil Procedure section 1021.5 and, if so, whether their application to the facts of the case is within the range of discretion conferred upon the trial courts under the Code of Civil Procedure section 1021.5, read in light of the purposes and policy of the statute.
(Marine Forests Society v. California Coastal Com.
(2008)
b. The Trial Court’s Findings Are Supported by Substantial Evidence and Its Ruling Was a Proper Exercise of Discretion.
Code of Civil Procedure section 1021.5 provides in pertinent 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.”
The statute codifies the private attorney general doctrine the Supreme Court adopted in
Serrano v. Priest
(1977)
Entitlement to attorney fees under Code of Civil Procedure section 1021.5 requires a showing that the litigation (1) served to vindicate an important public right; (2) conferred a significant benefit on the general public or a large class of persons; and (3) was necessary and imposed a financial burden on plaintiffs which was out of proportion to their individual stake in the matter.
(Center for Biological Diversity
v.
County of San Bernardino
(2010)
However, a party seeking an award of Code of Civil Procedure section 1021.5 attorney fees must first be determined to be “a successful party.”
(Ebbetts, supra,
The “catalyst theory” permits an award of attorney fees even when the litigation does not result in a judicial resolution if the defendant changes its behavior substantially because of, and in the manner sought by, the litigation.
(Marine, supra,
At the very least, a plaintiff must establish the precise factual/legal condition that it sought to change or affect as a prerequisite for establishing the catalytic effect of its lawsuit.
(Graham, supra,
In
Graham,
the Supreme Court explained that “[t]he term ‘successful party’ as ordinarily understood, means the party to ligation that achieves its objectives.”
(Graham, supra,
To satisfy the causation prong of the catalyst theory, the plaintiff need not show that litigation was
the only cause
of the defendant’s acquiescence, only that it was a substantial factor contributing to the defendant’s action.
(Cates, supra,
The causation issue may be resolved by relatively economical, straightforward inquiries by trial judges close to and familiar with the litigation and its determination of causation is entitled to deference by the appellate court if there is any reasonable basis in the record to support the determination.
(Cates, supra,
In the present case, there is evidence to support the trial court’s finding that the Coalition action was not a substantial factor contributing to the defendant’s action. First, prior to the date the land use entitlements were revoked, the trial court had entered a judgment denying the petition for writ of mandate, which was a win for Yucaipa. Coalition did not prevail, but instead appealed the judgment in January 2009. In the meantime, in August 2009, Target dismissed its specific performance cause of action in the contract litigation against Palmer. This cause of action had sought to enforce the agreement by Palmer to sell the approximately 60 acres of land to Target and constituted an abandonment of the Project. The minutes of the Council meeting of October 12, 2009, reflect that the motivation for revoking the land use entitlements for Project was due to the fact that, in the Contract Action between Target and Palmer, Target was dismissed from the lawsuit, withdrawing its defense under the indemnification agreement, and Palmer declined to take up the defense.
Second, Yucaipa did not change its behavior substantially because of,
and in the manner sought by,
the litigation.
(Marine, supra,
Coalition argues that its action was the “but for” catalyst for Yucaipa setting aside the EIR and the entitlements because Target’s decision to abandon the Project did nothing to moot the action. The evidence indicates otherwise. Target’s abandonment of the Project meant the development would not take place; the Project was dead. The PDP approval, issued for the development, which formed the basis for the conditional land use entitlements, was nullified. Therefore, the land use entitlements were not revoked because the EIR violated CEQA, in the manner sought by the CEQA action, and was only incidentally related to that litigation. The revocation was necessary to insure consistency with the general plan. The CEQA action was not a substantial factor contributing to Yucaipa’s action.
Coalition also argues that the trial court’s finding that Coalition’s action was
the
motivating catalyst showed it applied the incorrect standard, placing emphasis in italics. However, our reading of the transcript indicates that in reciting its tentative ruling, the court properly considered “whether the
Coalition also argues its action had merit and achieved success by threat of victory. It calls into question the trial court’s statement that Coalition had not shown that the appeal would have been meritorious if heard, in urging us to find error. Coalition misses the point. Its “action” was the CEQA petition, and that petition had been denied by the trial court’s initial judgment, only to be later dismissed with prejudice. None of the cases applying the catalyst theory involved situations in which an adverse judgment had already been rendered against the party seeking attorney fees. Use of the terminology “meritorious action” in the catalyst theory cases refers to proceedings which were rendered moot before a judgment on the merits, in order to determine if a party was the prevailing party where there is no judgment. That did not happen here.
Further, filing an appeal from the adverse judgment does not convert an unsuccessful action into a meritorious one. A direction to dismiss the action with prejudice on remand was not a favorable outcome. Having lost twice, Coalition cannot show “threat of victory.” Here, Coalition lost in the trial court. If it had made a motion for attorney fees at that point, there is no question that it would not be entitled to recover.
Coalition asks us to determine that an appeal from an unfavorable judgment constituted a catalyst for Yucaipa’s revocation of the land use entitlements. Coalition attempts to bolster this argument by intimating that the Attorney General planned to intervene, as evidence of the meritorious nature of its arguments. This argument fails because there was no evidence of any intended intervention by the Attorney General aside from counsel’s self-serving hearsay statements. By law, the Attorney General monitors all CEQA cases. (Pub. Resources Code, § 21167.7.) Indeed, this statute required Coalition to serve the Attorney General with its pleadings. The fact that Coalition filed an appeal from the adverse judgment did not convert the action into a meritorious one under the catalyst theory.
In any event, the likelihood of a reversal of the trial court’s judgment was minimal, at best, because on appeal from the denial of its petition for writ of mandate, just as in the mandate proceedings in the trial court, the judgment
We have not found a threat of victory in this record. We agree with the trial court that Coalition was neither a prevailing party nor a catalyst to Yucaipa’s action of revoking the land use entitlements.
DISPOSITION
The judgment is affirmed. Costs are awarded to Respondents.
McKinster, J., and Miller, J., concurred.
Notes
Land use “entitlement” refers to the approval by the city to introduce a new or expanded land use activity on a particular site. A new or expanded use requires one of . four possible permits or licenses, (<http://yucaipa.org/development/community-development/land-useentitlement-process/> [as of June 8, 2015].) Conditional use permits and development approvals are land use entitlements that run with the land.
(Maintain Our Desert Environment v. Town of Apple Valley
(2004)
De novo review is warranted where the determination is based on statutory construction.
(Edna Valley Watch v. County of San Luis Obispo
(2011)
Reversal was made an even more remote possibility based on the fact that our docket shows the administrative record was not transmitted to this court in the prior appeal, although four volumes of a joint appendix were filed. Because review on the merits in the prior appeal would have required review of the administrative record in order to determine if there was substantial evidence to support the trial court’s judgment, it is possible that the prior appeal would have been dismissed for an inadequate record. We note that both parties have referred to the administrative record in their respective briefs in the current matter, but that record is not before us in this appeal, either. It is the duty of the appellant to present an adequate record to the court from which prejudicial error may be shown.
(Dawson
v.
Toledano
(2003)