22 Cal. App. 5th 1149
Cal. Ct. App. 5th
2018
HOFFSTADT, J.

Under Code of Civil Procedure section 1021.5,1 а trial court may award attorney's fees to the "successful party" in a lawsuit that "has resulted in the enforcement of an important right affecting the public interest" if, among other things, the lawsuit confers "a significant benefit" upon "the general public or a large class of persons." If a party is "successful" and has conferred a "significant benefit" by prevailing at trial and obtaining a judgmеnt that a construction project violates the zoning laws in existence at the time, is that party precluded from obtaining attorney's fees under section 1021.5 because the losing party gets the zoning laws changed and the project's validity under the changed law has yet to be finally determined? We conclude that the answer is "no." Consequently, and because we conclude thаt the trial court did not abuse its discretion in fixing the amount of attorney's fees, we affirm the awards of attorney's fees. FACTS AND PROCEDURAL BACKGROUND

I. Facts

Real party in interest Target Corporation (Target) wants to build a retail store on the corner of Western Avenue and Sunset Boulevard in Hollywood, California.

For purposes of zoning, that location is subject to the Los Angeles Municipal Code as well as to a more specific Station Neighborhood Area Plan (SNAP), which for this location is the Vermont/Western Transit Oriented District Specific Plan. Within the geographic area covered by the SNAP, the location falls within Subarea C. Under the law in effect at the time, commercial buildings in Subarea C (other than hospitals and "mixed use" buildings (that is, part commercial and part residential) ) (1) could not еxceed 35 feet in height, (2) were required to incorporate certain aesthetic design elements aimed at avoiding the look of a "big box" store, (3) could not have more than 390 parking spaces, (4) were required to limit the hours during which they accept deliveries, and (5) if the square footage exceeds 40,000 square feet, were required to offer free delivery to loсal residents.

Target submitted two plans to defendant the City Council of the City of Los Angeles (the City or City Council). Initially, Target sought to build a retail store that complied with the above stated requirements of the Municipal Code and the SNAP. Subsequently, however, Target submitted a new proposal to build a Super Target retail store. The Super Target store would be nearly 75 feet in height, complеte with a transit plaza, an above ground parking lot with 458 parking spaces, and 163,862 square feet of retail space (the Project).

Because the Project did not comply with the SNAP, the City Council granted eight variances (called "exceptions") from the SNAP pursuant to Los Angeles Municipal Code section 11.5.7.F.2. These variances excepted the Project from the SNAP's height rеstrictions, many of its design element requirements, its parking space limit, its delivery time restrictions, and its free delivery requirements.

II. Procedural Background

A. Writ Petitions

Plaintiffs La Mirada Avenue Neighborhood Association of Hollywood (La Mirada) and Citizens Coalition Los Angeles (Citizens) (collectively, plaintiffs), both of which are "community association[s]" that "advocate for residential quality of life issues," filed separate petitions for a writ of mandate against the City (and naming Target as the real party in interest). In their operative first amended petitions, plaintiffs generally alleged "a substantial interest in ensuring that the City's decisions are in conformity with the requirements of the law." More specifically, one or both of those petitions alleged: (1) the Project violated the California Environmental Quality Act (CEQA) ( Pub. Resources Code, § 21000 et seq. ) because the Project's environmental impact report was deficient; (2) the Project violated the Los Angeles Municipal Code because the eight variances from the SNAP were not supported by substantial evidence; (3) the City Council denied plaintiffs a fair hearing; and (4) the City did not comply with the laws governing open meetings. With respect to thе alleged violation of the Municipal Code, plaintiffs sought (1) "to vacate and set aside the actions approving the [SNAP] exceptions for the Project, and [to have] the Court invalidate the exceptions"; (2) to "enjoin the City ... from granting any authority, permits or entitlements ... pursuant to the [SNAP] exceptions"; and (3) to "enjoin ... any activities or construction pursuant to the [SNAP] exceptions."

B. Trial Court's Partial Grant of the Writ Petitions

Following full briefing, the trial court issued a 28-page order partly granting and partly denying plaintiffs' writ petitions. The court denied the writs insofar as they alleged violations of CEQA and the denial of a fair hearing. And plaintiffs had by that time already abandoned their claim that the City Council had violated the open meeting laws. However, the court concluded that six of the eight SNAP varianсes violated the Los Angeles Municipal Code because they were not supported by substantial evidence; of the variances alleged to be invalid, the court only upheld the variance for the number of parking spaces and the waiver of the home delivery requirement. In July 2014, the trial court entered judgment for plaintiffs on the writs invalidating six of the eight Municipal Code variаnces, enjoining any actions "in furtherance of" those variances, and "immediately ... restrain[ing] ... all construction activities." The judgment also authorized plaintiffs to seek attorney's fees.

C. Appeals of Writ Petitions ( La Mirada I)

Both Target and La Mirada appealed the judgment.

While the appeals were pending, and at Target's urging, the City Council amended the SNAP to create a new Subarea F, to delineate Subarea F's geographical boundaries to includе the Project, and to define Subarea F's zoning rules to allow for big retail stores like the Project.

Target asked this Court to hold the pending appeals in abeyance and consolidate them with the anticipated appeals in the next round of litigation challenging the SNAP amendments. In a published ruling, this Court dismissed the appeals as moot but left the judgment intact. ( La Mirada Avenue Nеighborhood Assn. of Hollywood v. City of Los Angeles (2016) 2 Cal.App.5th 586, 588-592, 206 Cal.Rptr.3d 343 ( La Mirada I ).)

D. Challenges Under New Zoning Laws

Plaintiffs filed new petitions for a writ of mandate in separate cases, challenging the Project's validity under the newly amended SNAP. After a trial held on March 30, 2017, the court vacated the City's approval of the Project. Target's appeal of that challenge is pending before us in Citizens Co alition Los Angeles v. City of Los Angeles , B282142.

E. Litigation over Attorney's Fees

After the La Mirada I appeal was dismissed, plaintiffs moved for attorney's fees pursuant to section 1021.5 for prevailing on their challenges to the SNAP variances. After full briefing and a hearing, the trial court granted La Mirada attorney's fees totaling $793,817.50 and Citizens attorney's fees of $180,320. The court concluded that plaintiffs had "been successful at each stage of the litigation," and that the lawsuit had conferred a "significant benefit ... on [City] residents" because ‍‌‌‌​‌‌‌‌​​‌​‌‌‌‌​​​‌​​​‌‌​‌​‌​‌‌​​‌‌‌‌‌‌​‌‌‌‌​‌‌‍it "upheld the building limitations specified in [the SNAP] against the City's approval of exceptions that did not meet the legal requirements for variances." The court rejected the argument that "recent amending of the" SNAP undermined the propriety of a fee award. The court went on to calculate the fee amount by evaluating the reasonableness of the time spent and the hourly rate, adjusting down a few of the hours and rates, and using a multiplier of 1.4.

F. Appeals of Attorney's Fees Awards

Target and the City filed timely notices of appeal from each of the attorney's fees orders. We consolidated these appeals.

DISCUSSION

As a general rule, parties in litigation pay their own attorney's fees. ( Laffitte v. Robert Half Internat., Inc. (2016) 1 Cal.5th 480, 488, 205 Cal.Rptr.3d 555, 376 P.3d 672.) Section 1021.5 is an exception to that rule. ( Ebbetts Pass Forest Watch v. Department of Forestry & Fire Protection (2010) 187 Cal.App.4th 376, 381, 114 Cal.Rptr.3d 351 ( Ebbetts Pass ).) Derived from the judicially crafted "private attorney general doctrine" ( Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 154 Cal.Rptr. 503, 593 P.2d 200 ( Woodland Hills ) ), section 1021.5 is aimed at еncouraging litigants to pursue meritorious public interest litigation vindicating important rights and benefitting a broad swath of citizens, and it achieves this aim by compensating successful litigants with an award of attorney's fees. ( Id. at pp. 924-925, 154 Cal.Rptr. 503, 593 P.2d 200 ; Serrano v. Priest (1977) 20 Cal.3d 25, 43, 47, 141 Cal.Rptr. 315, 569 P.2d 1303.)

Target argues that that the trial court's attorney's fees orders must be overturned because (1) plaintiffs have not established their eligibility for such fees under section 1021.5, and (2) the amount of fees awarded is excessive. We review the first question with a mixed standard of review: To the extent we construe and define the statutory requirements for an award of attorney's fees, our review is de novo; to the extent we assess whether those requirements were properly applied, our review is for an abuse of discretion. ( Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175, 39 Cal.Rptr.3d 788, 129 P.3d 1 ; Serrano v. Stefan Merli Plastering Co., Inc. (2011) 52 Cal.4th 1018, 1025-1026, 132 Cal.Rptr.3d 358, 262 P.3d 568.) We review the second question for an abuse of discretion. ( Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 578, 21 Cal.Rptr.3d 331, 101 P.3d 140 ( Graham ).)

I. Eligibility for Attorney's Fees Under Section 1021.5

To obtain an order requiring the losing party to pay attorney's fees under section 1021.5, the movant must establish that (1) it is "a successful party" in an "action," (2) the action "has resulted in the enforcement of an important right affecting the public interest," (3) the action has "conferred" "a significant benefit" "on the general public or a large class of persons," and (4) an award of attorney's fees is "appropriate" in light of "the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity." ( § 1021.5 ; Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 317-318, 193 Cal.Rptr. 900, 667 P.2d 704 ( Press ); Ebbetts Pass , supra , 187 Cal.App.4th at p. 381, 114 Cal.Rptr.3d 351 [movant bears burden of proof].) And if the successful party obtained damages, the party must also establish that the attorney's fees "should not in the interest of justice be pаid out of the recovery." ( § 1021.5.)

Target contends that the trial court erred in ruling that plaintiffs were successful (the first requirement) and that plaintiffs' action conferred a significant benefit on the general public or a large class of persons (the third requirement). Target's attack on these two requirements boils down to the same basic premise-namely, plaintiffs have yet to be sucсessful or to confer any significant benefit because Target may yet prevail in getting the Project approved under the new zoning laws. As we explain below, this premise is invalid.

A. Success

What does it mean to be "successful"?

When it comes to section 1021.5, the successful party is "the party to litigation that achieves its objectives." ( Graham , supra , 34 Cal.4th at p. 571, 21 Cal.Rptr.3d 331, 101 P.3d 140 ; Folsom v. Butte County Assn. of Governments (1982) 32 Cal.3d 668, 686, 186 Cal.Rptr. 589, 652 P.2d 437 ( Folsom ) [looking to "litigation aim"]; Harbor v. Deukmejian (1987) 43 Cal.3d 1078, 1103, 240 Cal.Rptr. 569, 742 P.2d 1290 ( Harbor ) [successful party is the one who "vindicate[s] the principle upon which [it] brought th[e] action"].)

This definition is both "pragmatic" and "broad." ( Graham , supra , 34 Cal.4th at p. 565, 21 Cal.Rptr.3d 331, 101 P.3d 140.) To be the successful party, a party need not obtain final judgment in its favor. ( Ibid. ; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1290-1291, 240 Cal.Rptr. 872, 743 P.2d 932.) It need not succeed on all of its claims. ( RiverWatch v. County of San Diego Depart. of Environmental Health (2009) 175 Cal.App.4th 768, 782-783, 96 Cal.Rptr.3d 362 ( RiverWatch ).) And it need not "personally ‍‌‌‌​‌‌‌‌​​‌​‌‌‌‌​​​‌​​​‌‌​‌​‌​‌‌​​‌‌‌‌‌‌​‌‌‌‌​‌‌‍benefit[ ]" from its success. ( Harbor , supra , 43 Cal.3d at pp. 1089-1103, 240 Cal.Rptr. 569, 742 P.2d 1290 [party "succeeded" when court invalidated Governor's authority to make line-item veto, even though ruling would not be retroactively applied to benefit that party]; accord, Ebbetts Pass , supra , 187 Cal.App.4th at p. 382, 114 Cal.Rptr.3d 351.) Indeed, bеcause the "critical fact" to success "is the impact of the action, not the manner of its resolution" ( Folsom , supra , 32 Cal.3d at p. 685, 186 Cal.Rptr. 589, 652 P.2d 437 ), the party need not "win" the lawsuit at all: It is enough to show that the lawsuit was a "catalyst" that motivated the defendant to alter its behavior, be it through voluntary action growing out of a settlement or otherwise. ( Graham , at p. 567, 21 Cal.Rptr.3d 331, 101 P.3d 140 ; Maria P. , at pp. 1291-1292, 240 Cal.Rptr. 872, 743 P.2d 932 [emphasizing need for "causal connection" between lawsuit and defendant's subsequent conduct].)

The trial court did not abuse its discretion in concluding that plaintiffs were a successful party for two distinct but interlocking reasons. First, plaintiffs sought a writ that would "vacate and set aside" the City Council's grant of eight variances from the SNAP, and it did so as a way to vindicate their "interest in ensuring that the City's decisions are in conformity with the requirements of the [Municipal Codе]." Plaintiffs achieved this objective when the trial court invalidated six of the eight variances for noncompliance with the Municipal Code. Second, plaintiffs' lawsuit served as a catalyst that motivated the City-a defendant in this action-to amend the SNAP to create a new Subarea F specifically to make the Project lawful under the Municipal Code. A party is successful when, as here, its lawsuit directly prompts a "legislative fix." (See Sagaser v. McCarthy (1986) 176 Cal.App.3d 288, 314, 221 Cal.Rptr. 746 [noting that the "impact" of a lawsuit "might include legislative changes ... or amendments in policy"].) B. Significant Benefit

Whether a successful party's lawsuit confers a "significant benefit" on the general public or a large class of persons is a function of (1) "the significance of the benefit," and (2) "the size of the class receiving [the] benefit." ( Woodland Hills , supra , 23 Cal.3d at pp. 939-940, 154 Cal.Rptr. 503, 593 P.2d 200.) In evаluating these factors, courts are to "realistic[ally] assess[ ]" the lawsuit's "gains" "in light of all the pertinent circumstances." ( Id. at p. 940, 154 Cal.Rptr. 503, 593 P.2d 200.)

A benefit need not be monetary to be significant. ( § 1021.5 [defining "a significant benefit" as either "pecuniary or nonpecuinary"].) Where, as here, the nonpecuniary benefit to the public is the proper enforcement of the law, the successful party must show that thе law being enforced furthers a significant policy. ( Woodland Hills , supra , 23 Cal.3d at pp. 939-940, 154 Cal.Rptr. 503, 593 P.2d 200 [so holding because "the Legislature did not intend to authorize an award of attorney fees in every case involving a statutory violation"].) In such instances, the significant benefit and important right requirements of section 1021.5 to some extent dovetail. ( Id. at p. 935, 154 Cal.Rptr. 503, 593 P.2d 200 [noting that courts must exercise "some selectivity" when deciding which rights are "important"]; accord, Marini v. Municipal Court (1979) 99 Cal.App.3d 829, 836, 160 Cal.Rptr. 465 ( Marini ) [noting that an "important" right "cannot be based on trivial or peripheral public policies"].)

The "extent of the public benefit" from the lawsuit must be "substantial," but "need not be great." ( RiverWatch , supra , 175 Cal.App.4th at p. 781, 96 Cal.Rptr.3d 362 ; Center for Biological Diversity v. County of San Bernardino (2010) 185 Cal.App.4th 866, 894, 111 Cal.Rptr.3d 374 ; cf. Concerned Citizens of La Habra v. City of La Habra (2005) 131 Cal.App.4th 329, 335-336, 31 Cal.Rptr.3d 599 [lawsuit resulted in correction of a "minute blemish" in ‍‌‌‌​‌‌‌‌​​‌​‌‌‌‌​​​‌​​​‌‌​‌​‌​‌‌​​‌‌‌‌‌‌​‌‌‌‌​‌‌‍environmental impact report; no significant benefit]; Karuk Tribe of Northern California v. California Regional Water Quality Control Bd., North Coast Region (2010) 183 Cal.App.4th 330, 336, 108 Cal.Rptr.3d 40 [lawsuit resulted in remand for reasons articulated by the appellate court but not by the successful party; no significant benefit]; United States v. Eastern Municipal Water Dist. (C.D.Cal. Jan. 3, 2011, No. CV 04-8182 CBM (RNBx)) 2011 WL 13180256, 2011 U.S.Dist. Lexis 161674 [lawsuit secured procedural victory wholly duplicated by another suit brought by United States; no significant benefit]; Marini , supra , 99 Cal.App.3d at pp. 837-838, 160 Cal.Rptr. 465 [lawsuit preserved municipal court's discretion to implement a pretrial diversion program for drunk drivers, brought by drunk driver; no significant benefit].)

The trial court did not аbuse its discretion in ruling that plaintiffs' lawsuit conferred a significant benefit on the general public or a large class of persons. The chief benefit identified by the trial court-requiring the City to adhere to the Municipal Code's "legal requirements" for granting variances from the SNAP-furthers a significant public policy. Our Supreme Court has consistently recognized the importance of "presеrv[ing] the integrity of" a "locality's governing general plan" for zoning ( Woodland Hills , supra , 23 Cal.3d at p. 936, 154 Cal.Rptr. 503, 593 P.2d 200 ), including through judicial oversight that "prevent[s] unjustified variance awards" that threaten to "subver[t] ... the critical reciprocity upon which zoning regulation rests" ( Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 517-518, 113 Cal.Rptr. 836, 522 P.2d 12 ).2 (Accord, Schafer v. City of Los Angeles (2015) 237 Cal.App.4th 1250, 1263, 188 Cal.Rptr.3d 655 ["Zoning laws concern 'a vital public interest' "].) What is more, the vindication of this significant policy benefits not only the рersons living near the Project and the persons living within the geographical boundaries of the SNAP at issue in this case, but also all residents of the City of Los Angeles who benefit from the trial court's ruling that holds the City Council's zoning decisions to the letter and spirit of the Municipal Code.

C. Impact of New Zoning Law

Target contends that plaintiffs were not successful parties and that they have not conferred any significant bеnefit because the validity of the Project under the new zoning law is still pending and has yet to be finally adjudicated. In support of this "wait and see" approach, Target makes what boils down to two arguments.

First, Target asserts that plaintiffs' objective was to stop the Target store from ever being built and that they have not yet achieved that objective because Target may still рrevail in its position that the Project is valid under the new zoning law.

This assertion is both factually inaccurate and legally untenable.

It is factually inaccurate because the stated objective of plaintiffs' writ petitions, with respect to the SNAP variances, was to set aside and invalidate the eight variances initially granted by the City Council as well as to enjoin any further constructiоn contingent upon their validity. At no point did plaintiffs allege that their writ petitions were aimed at stopping the Project forevermore.

Target's assertion is also legally untenable because success for purposes ‍‌‌‌​‌‌‌‌​​‌​‌‌‌‌​​​‌​​​‌‌​‌​‌​‌‌​​‌‌‌‌‌‌​‌‌‌‌​‌‌‍of section 1021.5 does not require a showing that the successful party put the entire dispute to rest for once and all. To the contrary, section 1021.5 contemplates "interim attorney fee awards" for successes conferring a significant benefit before the matter is finally litigated. ( Bell v. Farmers Ins. Exchange (2001) 87 Cal.App.4th 805, 832-833, 105 Cal.Rptr.2d 59.) As long as an interim benefit is "complete regardless of subsequent proceedings," a court may recognize that benefit by an award of attorney's fees. ( Ciani v. San Diego Trust & Savings Bank (1994) 25 Cal.App.4th 563, 576, 30 Cal.Rptr.2d 581 ; Center for Biological Diversity v. County of San Bernardino , supra , 185 Cal.App.4th at p. 895, 111 Cal.Rptr.3d 374 ["the 'substantial benefit' criterion" is to be considered "in the context of the outcome оf the current litigation, and not on speculative future events"].)

In this case, the trial court's ruling that the SNAP variances violated the Municipal Code as it existed at that time was reduced to a judgment, a judgment that was left intact after La Mirada I . For that reason, the rulings underlying the fee awards in this case are more final than the typical "interim" ruling handed down before judgment. Indeed, the judgments in this case arе interim only against the backdrop of the broader litigation between the parties, which continues only because the City amended the zoning law and thereby prompted a new round of petitions challenging the Project under the new zoning law. That the City by amending the zoning law is just trying to "get it right," as Target urges, is beside the point; the proper focus is on the "litigation objectives" of the prеvailing plaintiff ( Graham , supra , 34 Cal.4th at pp. 571-572, 21 Cal.Rptr.3d 331, 101 P.3d 140 ), not the motives of the losing defendant.

What is more, Target's assertion leads to an absurd result. A court may only grant writ relief after applying " 'the law in existence at the time of its decision.' " ( Atlantic Richfield Co. v. Board of Supervisors (1974) 40 Cal.App.3d 1059, 1065, 115 Cal.Rptr. 731, italics omitted.) Consequently, a writ petitioner can, at most, seek to invalidate a "final administrative order or decision" under the law then in existence. (§ 1094.5, subd. (a).) Target, however, invites us to deny attorney's fees to a writ petitiоner who succeeds under the law in existence at the time because it has yet to succeed under the law as it might be amended in the future , even though that petitioner cannot seek (and a court cannot award) such "now-and-forevermore" relief. We decline to define success as requiring one to achieve the impossible.

Second, Target cites cases holding that a party may not obtain attorney's fees under section 1021.5"until the benefit is secure." ( Folsom , supra , 32 Cal.3d at p. 679, 186 Cal.Rptr. 589, 652 P.2d 437 ; Urbaniak v. Newton (1993) 19 Cal.App.4th 1837, 1844, 24 Cal.Rptr.2d 333.) Applying this standard, courts have held that a party's success in overturning a grant of summary judgment against it is not "secure" because the victory merely sets the matter for trial, where the merits will be determined for the first time. ( Urbaniak , at p. 1844, 24 Cal.Rptr.2d 333 ;

Miller v. California Com. on Status of Women (1985) 176 Cal.App.3d 454, 458-459, 222 Cal.Rptr. 225.) These cases are distinguishable where, as here, the party has obtained a final judgment in its favor on the merits undеr the law in existence at the time and where what remains to be finally adjudicated is the validity of a project under the law as subsequently amended.3

II. Amount of Fees**

DISPOSITION

The orders are affirmed. Plaintiffs are entitled to their costs on appeal.

We concur:

ASHMANN-GERST, Acting P.J.

CHAVEZ, J.

Notes

All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

In light of the significance of this public policy, we neеd not decide whether another of the interests ‍‌‌‌​‌‌‌‌​​‌​‌‌‌‌​​​‌​​​‌‌​‌​‌​‌‌​​‌‌‌‌‌‌​‌‌‌‌​‌‌‍served by the zoning laws-namely, preserving adequate housing-is itself independently significant.

In light of our conclusion that the trial court did not abuse its discretion in finding that plaintiffs were successful and conferred a significant benefit in obtaining a judgment invalidating the SNAP variances under the prior law, we need not decide whether plaintiffs independently succeeded and conferred a significant benefit for the litigation that resulted in the published opinion in La Mirada I .

See footnote *, ante .
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