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96 Cal.Rptr.2d
576 NATIONAL
PARKS AND CONSERVATION ASSOCIATION et al., Plaintiffs and Respondents, v. COUNTY
OF RIVERSIDE et al., Defendants and Appellants. No.
D032228. Court
of Appeal, Fourth District, Division 1, California. June
5, 2000. SUMMARY An
environmental group successfully challenged a county's initial environmental
impact report (EIR) on a project and was awarded attorney fees under Code Civ.
Proc., 1021.5 (private attorney general doctrine). Thereafter the trial court
found that the return EIR was also inadequate and entered an order for the
county to set aside the certification of the EIR. The trial court again awarded
plaintiff attorney fees. The Court of Appeal stayed the county's appeal as to
second award of attorney fees and reversed the order setting aside the
certification. (Superior Court of San Diego County, No. 662907, Judith
McConnell, Judge.) The
Court of Appeal reversed the order awarding plaintiff attorney fees as to the
challenge to the return EIR and remanded to the trial court to determine
whether plaintiff was entitled to recover attorney fees for attorney fees
incurred before the filing of the return EIR. The court held that plaintiff was
not entitled to Code Civ. Proc., 1021.5, attorney fees arising out of that
challenge, since the trial court's order was reversed on appeal on the ground
the second EIR was proper. The fact that the trial court has broad discretion
in awarding attorney fees was immaterial and did not require deference, as it
never exercised discretion after its order was reversed. It was also immaterial
that plaintiff prevailed in the initial action, and the work on the challenge
to the return EIR flowed directly from that action. Plaintiff could not recover
the fees by characterizing the challenge to the return EIR as postjudgment
litigation. The county's filing of the return EIR did not require the group to
challenge it. However, the court held that plaintiff may have been entitled to
1021.5 attorney fees reflecting work performed during the administrative
process leading to the certification of the return EIR. (Opinion by Haller, J.,
with Kremer, P. J., and McIntyre, J., concurring.) *236 COUNSEL Weston,
Benshoof, Rochefort, Rubalcava & MacCuish, Steven W. Weston, John A.
Henning, Jr.; McKenna & Cuneo and Michael H. Fish for Defendants and
Appellants. Gibson,
Dunn & Crutcher, Jeffrey D. Dintzer; Chatten-Brown and Associates, Jan
Chatten-Brown, Douglas P. Carstens and Kimberly E. Lewand for Plaintiffs and
Respondents. HALLER,
J. If
a petitioner prevails on a writ petition challenging an environmental impact
report (EIR), and then unsuccessfully challenges the subsequent EIR brought
before the trial court on a return to the writ, is the petitioner entitled to
Code of Civil Procedure section 1021.5 (section 1021.5) attorney fees
pertaining solely to the fees incurred in challenging the second EIR? We
conclude the petitioners here were not entitled to recover those fees because
the petitioners were not "successful" parties within the meaning of
section 1021.5. The
County of Riverside and other related parties (collectively Riverside) appeal
from a postjudgment order awarding National Parks and Conservation Association
and other related parties (collectively Association) $294,827 in attorney fees
under section 1021.5. [FN1] We
reverse and remand with directions. FN1 Appellants
are the Board of Supervisors of the County of Riverside, the County of
Riverside, Kaiser Steel Resources, Inc., Mine Reclamation Corporation, Inc.,
and Kaiser Eagle Mountain, Inc. Respondents include the National Parks and
Conservation Association, Eagle Mountain Landfill Opposition Coalition,
Laurence and Donna Charpied, Steve W. Clute, Daniel S. Roman, and Richard M.
Marsh. *237 Factual and
Procedural Background This
appeal arises from a proposed landfill project near Joshua Tree National Park.
In October 1994, the superior court granted Association's petitions for writ of
mandate, ruling the EIR on the project was inadequate under the California
Environmental Quality Act (CEQA). The court ordered Riverside's board of
supervisors to set aside the EIR certification and to suspend all activity
related to the landfill project "unless and until they have complied with
the requirements of CEQA ...." The court ordered Riverside to take eight
specific steps to bring the EIR in compliance with CEQA. The order stated
"[r]espondents are to make and file a return to this writ by ... showing
what they have done to comply with this writ...." (See Pub. Resources
Code, 21168.9.) The court retained jurisdiction until it "determined that
[Riverside] complied with the provisions of CEQA and this Court's
Judgment." Association, as the prevailing party, moved for attorney fees
and costs, and the parties later reached a settlement on these issues. [FN2] FN2 The court had
earlier denied one portion of the fees motion wherein individual petitioners
sought fees while they were acting in propria persona. In
February 1996, this court affirmed the trial court's orders granting
Association's writ petitions. (National Parks & Conservation Assn. v.
County of Riverside (1996) 42 Cal.App.4th 1505, 1509 [50 Cal.Rptr.2d 339].) The
project proponents then "went back to the drawing board," and after
extensive analysis, produced a new EIR, which was then submitted to the county.
(National Parks & Conservation Assn. v. County of Riverside (1999) 71
Cal.App.4th 1341, 1348 [84 Cal.Rptr.2d 563] (National Parks II).) After public
hearings and additional analysis, Riverside's board of supervisors certified
the new EIR. (Ibid.) In September 1997, Riverside submitted the
EIR to the trial court as its return on the prior writs (Return EIR). (National
Parks II, supra, 71 Cal.App.4th at p. 1348; see Pub. Resources Code, 21168.9.)
Riverside requested the court to "enter an order discharging the Writ[s]
and acknowledging the satisfaction of the Judgment." Association filed
numerous objections to the return. The superior court rejected some of these
objections, but found Riverside failed to comply with two of the writ
requirements. The court commanded Riverside to "set aside the
certification of the [EIR]" and all project approvals based on the EIR. Association moved for attorney fees, making
clear these fees were incurred after the Return EIR was filed and pertained
solely to Association's *238
challenge to the Return EIR. [FN3]
After considering the parties' submissions, the superior court found
Association was a prevailing party on this challenge and awarded Association
$294,827. FN3 Association
also requested $13,902 in fees for services provided before the filing of the
Return EIR. We will separately discuss these fees in Discussion, part II. Riverside
appealed from the trial court's order finding a lack of compliance with CEQA,
and from the trial court's attorney fees award. We stayed the appeal pertaining
to attorney fees pending consideration of the merits of the action. In
May 1999, we reversed the trial court's substantive order. We determined the
Return EIR was proper and complied with CEQA. We thus ordered the trial court
to overrule Association's "objections and enter an order discharging the
writ previously issued." (National Parks II, supra, 71 Cal.App.4th at p.
1368.) We
then lifted the stay on Riverside's appeal challenging the court's attorney
fees award. We now consider the attorney fees issue. Discussion I. Attorney
Fees Incurred After Return EIR Filed Section
1021.5 authorizes a court to award attorney fees to a "successful
party" when the action resulted in the enforcement of an important right
affecting the public interest, a significant benefit has been conferred, and
the necessity of private enforcement makes the award appropriate. ( 1021.5; see
County of San Diego v. Lamb (1998) 63 Cal.App.4th 845, 852 [73 Cal.Rptr.2d
912].) To recover fees under this statute, a claimant must show he or she was
"successful" in the action. (See Miller v. California Com. on Status
of Women (1985) 176 Cal.App.3d 454, 457 [222 Cal.Rptr. 225]; Carroll v. State
Bar (1985) 166 Cal.App.3d 1193, 1208 [213 Cal.Rptr. 305]; Residents Ad Hoc
Stadium Com. v. Board of Trustees (1979) 89 Cal.App.3d 274, 292 [152 Cal.Rptr.
585].) Thus,
where an appellate court reverses a judgment ordering issuance of a writ of
mandate, "[i]t follows" that the trial court's section 1021.5
attorney fees award must also be reversed. (Kimble v. Board of Education (1987)
192 Cal.App.3d 1423, 1430 [238 Cal.Rptr. 160]; accord, Save Our Residential
Environment v. City of West Hollywood (1992) 9 Cal.App.4th 1745, 1754 [12
Cal.Rptr.2d 308]; City of Sacramento v. State Water Resources Control Bd.
(1992) 2 Cal.App.4th 960, 978 [3 Cal.Rptr.2d 643].) *239 Association
was unsuccessful in challenging the Return EIR. Although it obtained a
favorable order from the trial court, we reversed this order, and required the
trial court to discharge the writ and overrule each of Association's
objections. (See National Parks II, supra, 71 Cal.App.4th at p. 1368.) It would
thus seem automatic that the section 1021.5 attorney fee award-pertaining
exclusively to services performed in challenging the Return EIR-must be
reversed. But
Association asserts numerous arguments in support of its novel position that
its lack of success in the second appeal is of no consequence in determining
its entitlement to the fees. These arguments are without merit. Association
first focuses on the broad discretion accorded trial courts in ruling on
section 1021.5 motions, and urges us to affirm the order because the trial
court "exercised considerable care in its award of attorneys' fees."
The obvious failure of this argument is that the trial court was never given
the opportunity to exercise its discretion to determine whether the Association
was a prevailing party after we reversed the court's order in its entirety.
Thus, we are not reviewing the court's exercise of discretion. Instead, we must
determine whether there is any factual basis for a court to find Association
was a prevailing party despite its complete lack of success in challenging the
Return EIR. If there is, we must remand to permit the court to exercise its
discretion. (See Neecke v. City of Mill Valley (1995) 39 Cal.App.4th 946, 966
[46 Cal.Rptr.2d 266].) If there is not, we must reverse the order. Accordingly,
we reject Association's arguments made throughout its briefs that we should
"defer" to the trial court's ruling. Association
next contends it is entitled to recover the fees because it prevailed in the
initial action, and the work on the challenge to the Return EIR flowed directly
from that action. Association argues that in determining whether a party is
"successful" within the meaning of section 1021.5, a court must look
at the case "as a whole," rather than success or failure at any
particular stage. This principle is inapplicable here because it is undisputed
that Association had already obtained its recoverable fees for prevailing on
the first writ. Association was seeking only those fees incurred in challenging
the Return EIR, a substantively discrete action for which Association was
wholly unsuccessful. While a party "need not prevail on every claim
presented ... to be considered a successful party ..." (Wallace v.
Consumers Cooperative of Berkeley, Inc. (1985) 170 Cal.App.3d 836, 846 [216
Cal.Rptr. 649]), Association did not receive even a partial victory in this *240 second litigation. On these facts,
Association is not entitled to the requested fees. [FN4] FN4 Wallace v.
Consumers Cooperative of Berkeley, Inc., supra, 170 Cal.App.3d 836, relied upon
by Association, is inapposite. There the court held a plaintiff could recover
fees in an unsuccessful action that was closely related to another action,
reasoning that the two actions involved "identical issues" and both
in fact achieved the same successful result. (Id. at p. 850.) Here the actions
involved challenges to two different EIR's; the issues were not identical and
the second action did not achieve a successful result. Association's
characterization of its challenge to the Return EIR as "postjudgment"
litigation is of no help. We recognize that the return filed by Riverside was technically
within the same action as the prior writ and therefore Association's second
challenge could be viewed as a form of postjudgment litigation within that
action. (See Pub. Resources Code, 21168.9, subd. (b); Endangered Habitats
League, Inc. v. State Water Resources Control Bd. (1997) 63 Cal.App.4th 227,
243-244 [73 Cal.Rptr.2d 388].) But it is not true that a previously successful
party is entitled to fees for "postjudgment" litigation regardless of
the outcome of that litigation. As illustrated by the decisions relied upon by
Association, courts have awarded fees in this context only under narrow
circumstances, none of which is present here. (See, e.g., California Trout,
Inc. v. Superior Court (1990) 218 Cal.App.3d 187 [266 Cal.Rptr. 788] (California
Trout); Miller v. Carson (5th Cir. 1980) 628 F.2d 346.) In
California Trout, the appellate court had initially directed the superior court
to issue writs commanding the state water board to attach conditions to
licenses for the appropriation of water. (California Trout, supra, 218
Cal.App.3d at p. 194.) On remand, the superior court allowed the water board to
defer imposition of the conditions, and refused the petitioners' request for
interim relief. (Ibid.) The petitioners then challenged this second ruling,
arguing the superior court abused its discretion in failing to order the water
board to attach the conditions. The appellate court agreed, and again directed
that the water board immediately attach the conditions. (Ibid.) Based on the
petitioners' success in the second phase of the litigation, the appellate court
held they were entitled to the fees because petitioners conferred a
"significant benefit on the general public" in ensuring the trial
court complied with the appellate court orders. (Id. at p. 212.) In
Miller v. Carson, supra, 628 F.2d 346, the petitioners were likewise successful
in obtaining a form of relief in the postjudgment action. In that case, the
plaintiffs obtained injunctive relief enjoining certain jail conditions found
to be unconstitutional. When the defendants failed to fully comply with the
orders, the plaintiffs brought a series of motions directed at obtaining
compliance. Although these motions were denied by the court, the *241 district court made a factual
finding that the plaintiffs' postjudgment efforts "successfully induced
[the defendant] to comply with ... the injunction" and " 'no doubt
had the effect of maintaining compliance with the Court's injunction.' "
(Id. at pp. 348-349.) Based on these factual findings that the plaintiffs had
in fact achieved a favorable outcome, the Fifth Circuit affirmed the trial
court's order awarding the plaintiffs attorney fees for these postjudgment
efforts. (Ibid.) Here,
Association's efforts in challenging the Return EIR did not reflect services to
ensure the court's previous orders were enforced. Once Riverside filed the
Return EIR, the issue was no longer one of enforcement, but it was the new
issue of whether the second EIR complied with CEQA. California Trout stands for
the not-so-surprising proposition that a party who successfully challenges a
trial court's rulings after an appellate court has remanded the case to the
court may be considered a successful party within the meaning of section
1021.5. Miller v. Carson stands for the related proposition that where a party
brings a postjudgment motion that helps ensure compliance with the prior court
order, the party may be considered a successful party for purposes of obtaining
private attorney general attorney fees, even though the party did not
technically obtain a "favorable ruling" during the postjudgment
proceedings. (See also Maria P. v. Riles (1987) 43 Cal.3d 1281, 1290-1291 [240
Cal.Rptr. 872, 743 P.2d 932]; Folsom v. Butte County Assn. of Governments
(1982) 32 Cal.3d 668, 685 [186 Cal.Rptr. 589, 652 P.2d 437].) These rules are
inapplicable here because Association's litigation challenging the Return EIR
did not help ensure compliance with a prior court order, or in any other way
succeed in securing a public benefit. [FN5] FN5 Turner v. Orr
(11th Cir. 1986) 785 F.2d 1498, relied upon by Association, is similarly
unhelpful. In that case, a consent agreement required the plaintiff to
participate in postjudgment litigation and provided for the plaintiff to
recover attorney fees in bringing these actions. Interpreting these provisions,
the court held the plaintiff's lack of success in the post-judgment litigation
was not determinative of its entitlement to attorney fees. Here, there was no
similar agreement governing the recovery of attorney fees. Association
argues that its lack of success does not matter because the services performed
by its attorneys in challenging the Return EIR were "necessary" and a
"public service," and therefore these services benefited the public.
It contends Riverside's "filing of a Return required [Association] to
return to the trial court to ensure that the public interest was
vindicated" and that it "had a continuing obligation to assist in
review of [Riverside's] compliance with the trial court's 1994 writ and raise
reasonable grounds for objection." Association thus maintains that
"since [its] counsel ethically could not abandon [Association] to fend for
[itself] in the Return proceedings related to enforcement of CEQA," the
trial court's attorney fees award was proper. *242 We disagree
with these assertions. There is no statutory authority or case law requiring an
opponent in environmental litigation to bring a challenge to a revised EIR
filed on a return. While the Association had a right to commence proceedings
challenging the adequacy of the Return EIR, it was not "required" or
compelled to do so. If Association believed the EIR met CEQA standards, it
certainly would not have been compelled to challenge the return. Association's
argument that the "adversarial perspective" was useful to the trial
court is beside the point. A judicial challenge to an EIR may frequently have
some public benefit because it provides a forum for ensuring that the public
entity has met its obligations. But the Legislature does not require that every
EIR be brought before a court. The Legislature has instead provided a public
process for EIR certification, and it is only when a petitioner makes the
voluntary decision to challenge that approval in court that the issues must be litigated.
The petitioner is then entitled to attorney fees only if he or she is
successful in the challenge. There
is no basis for finding different rules should apply when the challenge occurs
at the Return EIR stage. Indeed, to do so could encourage challenges even where
none is warranted. As with a challenge to an initial EIR, a petitioner may
recover attorney fees for challenging an EIR filed by a return only if the
petitioner obtained at least some success in that challenge. Because
Association did not obtain any success, it was not entitled to recover fees for
that challenge. II. Services
Related to Administrative Proceedings In
addition to seeking fees involved in its Return EIR challenge, Association
sought approximately $13,902 in fees reflecting work performed during the
administrative process leading to the certification of the Return EIR,
including "drafting comments on the proposed scope of the [EIR], analyzing
the Draft EIR, drafting comments on the Draft EIR, assisting in the preparation
of comments on the Final EIR, and assisting in the preparation of testimony for
the numerous public hearings." As
set forth above, a party may be considered a successful party within the
meaning of section 1021.5 if that party's efforts had the effect of ensuring
compliance with the trial court's prior order. (See California Trout, supra,
218 Cal.App.3d at p. 212.) This is true even if the services were performed in
connection with an administrative proceeding. The relevant test is whether
administrative activities were " 'useful and necessary and directly
contributed to the resolution of [the action].' " (Ciani v. San Diego
Trust & Savings Bank (1994) 25 Cal.App.4th 563, 576 [30 Cal.Rptr.2d 581].) *243 There is an
arguable basis for the trial court to find the services performed before the
Return EIR was filed had the effect of ensuring the new EIR would address the
eight specific deficiencies found in the original EIR. Because the trial court
could find these services contributed to Riverside's compliance with the
court's initial writ order and therefore resulted in a public benefit, we
remand for the court to exercise its discretion on these issues. Disposition The
court's September 4, 1998 attorney fees order is reversed. Association is not
entitled to recover attorney fees for services performed after the Return EIR
was filed (Sept. 1997). On remand, the court should exercise its discretion to
determine whether the approximately $13,902 in attorney fees incurred before
Riverside filed its Return EIR may be recovered under section 1021.5. Kremer,
P. J., and McIntyre, J., concurred. Cal.App.4.Dist.,2000. National
Parks and Conservation Assn. v. County of Riverside END
OF DOCUMENT CERTIFIED FOR
PUBLICATION |