105 Cal.Rptr.2d 782
JERE A. JOBE, Plaintiff and Appellant,
CITY OF ORANGE, Defendant and Respondent; LUTHERAN HIGH SCHOOL
ORANGE COUNTY, Real Party in Interest and Appellant.
Nos. G026974, G027732.
Court of Appeal, Fourth District, Division 3, California.
Apr. 10, 2001.
[Opinion certified for partial publication. [FN*] ]
FN* Pursuant to California Rules of Court, rules 976(b) and 976.1, this
opinion is certified for publication with the exception of parts II, III, IV,
An individual petitioned for a writ of mandate seeking to compel a city to set
aside its approval of the expansion of a high school, on the ground that the
city failed to comply with the California Environmental Quality Act (CEQA) by
preparing a mitigated negative declaration for the project rather than a full
environmental impact report. After the high school association, as the real
party in interest, successfully defended the action, the trial court issued a
post judgment order denying an award of attorney fees to the association under
Code Civ. Proc., 1021.5 (private attorney general doctrine). (Superior Court of
Orange County, No. 808455, Randell L. Wilkinson, Judge.)
The Court of Appeal affirmed the judgment and post judgment orders. The court
held that the trial court did not abuse its discretion by denying attorney fees
to the association. The real party in interest in CEQA litigation is typically
motivated by its personal stake in the outcome and thus is usually disqualified
under the private attorney general doctrine. Although the association was a
nonprofit organization, it had a significant pecuniary interest in the physical
expansion of the high school it owned and operated. (Opinion by O'Leary, J.,
with Sills, P. J., and Rylaarsdam, J., concurring.)
Maher & Maher and Michael K. Maher for Plaintiff and Appellant.
Van Blarcom, Leibold, McClendon & Mann, Ronald A. Van Blarcom and John G.
McClendon for Real Party in Interest and Appellant.
David A. DeBerry, City Attorney, for Defendant and Respondent.
Jere A. Jobe appeals a judgment denying his petition for writ of mandate (Code
Civ. Proc., 1085, 1094.5) seeking to compel the City of Orange (the City) to
set aside its approval of the expansion of the Lutheran High School of Orange.
He contends the City failed to comply with *414 the California
Environmental Quality Act (CEQA) [FN1] by preparing a mitigated negative
declaration (MND) for the project, rather than a full environmental impact report
(EIR). He raises numerous arguments on appeal, none of which have merit, and we
FN1 Public Resources Code ' 21000 et seq. All further statutory references
are to the Public Resources Code unless otherwise indicated.
separate appeal, real party in interest Lutheran High School Association of
Orange County (LHS), the nonprofit organization which owns and operates the
parochial school, complains that it should have been awarded its attorney fees
under Code of Civil Procedure ' 1021.5 (private attorney general) because it
advanced an important public interest in education by successfully defending.
We disagree and affirm the post judgment order denying attorney fees.
High School is located in a residential zone of the City where schools are a
conditionally permitted use. The high school occupies a 12.82- acre site on
Santiago Boulevard, north of Meats Avenue, south of Villa Vista Way, and east
of the 55 Freeway.
In 1969, the City granted the original conditional use permit (CUP) allowing
construction of the school. The CUP permitted a 76,000-square-foot, two-story
building for classrooms and administration, a 7,000-square-foot chapel, a
24,000-square-foot gymnasium, 250 off-street parking spaces, and a maximum
enrollment of 1,000 students.
In 1993, the City approved a second CUP allowing installation of lights on an
outdoor athletic field. At that time, only a one-story building had been built
containing 26 classrooms as well as administrative and other work spaces, all
of which centered around the school's gymnasium. The high school's enrollment
was less than 500. The parking lot had 232 spaces.
In 1995, the City approved another CUP permitting an office addition and minor
expansion of classrooms. The staff report noted the high school had been built
out to a 68,000-square-foot, one-story building. Its enrollment was less than
700 students. The parking lot had 243 spaces.
In 1998, LHS submitted an application for a CUP (CUP No. 2262-99) to further
expand the high school facilities. It envisioned enrollment increasing from 682
to 950. It proposed to add a second story to the main building and increase the
total square footage from 73,100 to 156,900. The new square *415
footage would add a maximum of 23 additional classrooms and other rooms for
independent study and extracurricular activities. The parking lot would be
enlarged to about 392 spaces, and eventually LHS would build a new gymnasium.
Jobe and other neighbors opposed the application, primarily because of
increased traffic and parking problems.
The City prepared the MND (No. 1585-99.) It described the project generally as
increasing enrollment to 950 students, adding 16 new classrooms, expanding the
parking facility, and building a new gymnasium. It found that while the project
could have a significant effect on the environment, there would not be one
because of revisions.
On January 18, 1999, the City's planning commission adopted a resolution
approving the CUP and the MND. As approved, the project included the addition
of 23 classrooms, construction of a new gymnasium, modifications to the sports
field, including outdoor lighting, and expansion of the parking facility from
250 to 392 spaces. Student enrollment was capped at 950.
Jobe appealed to the city council. He challenged the approval of the CUP for
the following reasons: the neighborhood did not need the school, the school
would create "special problems" for the neighborhood, aggravate
traffic, and negatively impact property values. He challenged the approval of
the MND on the grounds "a full [EIR] is required due to the potential of
ground water [and] air contamination." He further complained that the
traffic study upon which the planning commission relied did not take into
consideration the impact of reconstruction of the Meats Avenue overpass over
the 55 Freeway. After two public hearings, the city council denied the appeal
and approved the CUP and MND.
In April 1999, Jobe filed the instant petition for writ of mandate challenging
the approval of the CUP based upon a MND. The petition contained mandamus
causes of action, seeking to compel the City to prepare an EIR for the project.
It also contained causes of action for declaratory and injunctive relief,
seeking to declare all project approvals invalid and prohibit construction until
an EIR was prepared, but Jobe subsequently dismissed those causes of action.
Jobe requested the City prepare and lodge the administrative record, which was
lodged with the court on October 27, 1999. The hearing on Jobe's petition took
place on January 5, 2000. At the hearing, Jobe for the first time presented a
request for judicial notice seeking to add to the administrative record. Among
the items he sought to present were pages from a "Thomas Guide" map
book, his own transcriptions of comments he made at various *416
city council meetings and letters he had written, geological maps, and
newspaper articles. Jobe's request for judicial notice did not contain
declarations attesting to the authenticity of any of the material.
On January 10, the trial court asked the parties to stipulate to a site
inspection. Jobe's counsel responded with a letter questioning what sort of
inspection the court wanted and requesting a hearing on the matter. The trial
court withdrew its request. On January 11, the trial court issued its ruling
denying the petition. It denied Jobe's request for judicial notice because the
items were not authenticated, and it rejected Jobe's procedural complaints. It
found substantial evidence supported the City's approval of the project based upon
a MND-i.e., there was no substantial evidence supporting a "fair
argument" that the project might have a significant effect on the
FN* See footnote, ante, page 412.
VI. Denial of LHS's Request for Attorney Fees
LHS appeals a postjudgment order
denying its attorney fees. It contends fees should have been awarded under Code
of Civil Procedure ' 1021.5. We disagree.
Code of Civil Procedure ' 1021.5 is a codification of the private attorney
general doctrine developed in numerous prior judicial decisions. (Woodland
Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 933 [154
Cal.Rptr. 503, 593 P.2d 200].) It gives trial courts discretion to award
attorney fees to a successful party 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." (Code Civ. Proc., 1021.5.) It specifically precludes an award of
attorney fees to a prevailing public entity unless one of the opposing parties
is a public entity.
We are aware of no CEQA case in which the real party in interest has been
awarded its attorney fees under Code of Civil Procedure ' *417
1021.5. A leading treatise on CEQA litigation makes the following observation:
"Because [Code of Civil Procedure ' 1021.5] provides for an award of
attorney fees to any successful party, the court may make a fee award to a
respondent who prevails in the litigation and otherwise meets the requirements
of [Code of Civil Procedure ' 1021.5]. [Citation.]  Such a situation rarely
arises in CEQA litigation. As amended in 1993 [Code of Civil Procedure ']
1021.5 allows fees to be awarded to a public agency against another public
agency. [Citation.] In appropriate circumstances, a prevailing public agency
respondent would be entitled to a fee award in a case brought by another public
agency. The real party in interest in CEQA litigation is typically motivated by
its personal stake in the outcome and thus would usually be disqualified under
the burden of private enforcement test [citation]. An award might be available
under [Code of Civil Procedure '] 1021.5, however, if a real party in interest
is the sponsor of a project that itself advances an important public interest
and defends a CEQA proceeding primarily to advance that public interest rather
than personal interests." (2 Kostka & Zischke, Practice Under the Cal.
Environmental Quality Act (Cont.Ed.Bar 2000) 23.131, pp. 1045-1046.)
LHS contends it satisfied all of the requirements of Code of Civil Procedure '
1021.5, and the trial court's refusal to award attorney fees was an abuse of
discretion. It argues that in defending the litigation it advanced an important
public right-education. It claims that by advocating for the expansion of a
parochial school, it conferred a significant benefit on a large class of the
public because it would be able to educate thousands more students.
Furthermore, by privately educating those students, it will save the taxpayers
the expense of their public education. Finally, it contends the burden of its
private enforcement of these rights far outweighs its own "pecuniary"
interest in advancing them. It asserts that because it is a nonprofit
organization, it has no economic interest in expanding the high school; its
primary motivation is to advance the public's interest in education.
LHS relies upon Hull v. Rossi (1993) 13 Cal.App.4th 1763 [17 Cal.Rptr.2d 457],
the only case we have found in which the successful real parties in interest in
a mandamus action were entitled to attorney fees under Code of Civil Procedure
' 1021.5. It was not a CEQA case. That case involved an electoral battle
concerning the future of a city's water supply. (13 Cal.App.4th at p. 1765.)
The real parties in interest had signed ballot arguments appearing in the
official voters pamphlet supporting a measure advocating a water desalination
plant and opposing a bond measure to fund participation in the state water
project. (Ibid.) The petitioners, supporters of the bond measure, filed a
petition for writ of mandate seeking to have the *418 real
parties in interest's ballot arguments stricken as false and misleading.
(Ibid.) The city clerk was named as respondent in the petition. The real
parties in interest prevailed at trial; the trial court characterized the
petition as a SLAPP suit (strategic lawsuit against public participation),
i.e., one brought to intimidate and for purely political purposes. (Id. at p.
1769.) Nonetheless, the trial court denied attorney fees under Code of Civil
Procedure ' 1021.5. On appeal, the court reversed, holding that without the
extensive defense undertaken by the real parties in interest, the public's
right to an accurate impartial analysis of ballot measures would have been
violated. (13 Cal.App.4th at p. 1768.)
Hull v. Rossi, supra, 13 Cal.App.4th 1763, is easily distinguishable. It simply
could not be said that the real parties in interest in that case had any
pecuniary interest in the competing ballot measures. By contrast, although LHS
is a nonprofit organization and may not profit financially from an increased
student enrollment in the way a for-profit private school might, it certainly
has a significant pecuniary interest in the physical expansion of the high
school it owns and operates. The facilities are a significant asset of LHS.
Woodland Hills Homeowners Organization v. Los Angeles Community College Dist.
(1990) 218 Cal.App.3d 79 [266 Cal.Rptr. 767], although not a CEQA case, is
remarkably similar to this case and we agree with its reasoning. In that case,
a community college district entered into a long-term lease of surplus property
with a religious organization, which intended to develop the property for
religious, educational, and private use. An area homeowners association filed a
complaint for declaratory and injunctive relief against the district
contending, among other things, the lease constituted a gift of public funds
and property, violated state law regarding disposition of surplus school
property and violated the establishment clauses of the United States and
California Constitutions. (Id. at p. 88.) The religious organization defended
the suit alongside the district and prevailed on summary judgment. (Id. at p.
87.) Nonetheless, the trial court denied its application for attorney fees
under Code of Civil Procedure ' 1021.5 because the action " 'was brought
and defended for purely selfish purposes, did not materially affect any public
interest and conferred no significant benefit upon the public or upon anyone
other than the parties.' " (218 Cal.App.3d at p. 96.)
In affirming, the Court of Appeal noted, "The resolution of issues raised
by every legal action benefits the general public to some extent, in the sense
that every judicial decision is the application, clarification or the
development of the law. This is profoundly so when the issues concern such *419
fundamental constitutional principles as the separation of church and state.
However, where the result of the litigation is judicial approval of a
challenged governmental action, the defense of which was in the pecuniary
interest of the defendant litigating alongside the governmental entity, it is
difficult to satisfy the requirement of Code of Civil Procedure ' 1021.5, i.e., that the defense
by the private litigant was necessary and that the financial burden resulting
from its defense is appropriately shifted to the plaintiff. [Citations.]"
(Woodland Hills Homeowners Organization v. Los Angeles Community College Dist.,
supra, 218 Cal.App.3d at pp. 96-97.)
An award of attorney fees under Code of Civil Procedure ' 1021.5, requires that
the claimant show the cost of its legal victory transcended its personal
interest. (Feminist Women's Health Center v. Blythe (1995) 32 Cal.App.4th 1641,
1667 [39 Cal.Rptr.2d 189].) LHS made no such showing here. Thus, the trial
court did not abuse its discretion by denying attorney fees under Code of Civil
Procedure ' 1021.5.
The judgment and post judgment orders are affirmed. The parties shall bear
their own costs and attorney fees on appeal.
Sills, P. J., and Rylaarsdam, J., concurred. *420
JERE A. JOBE, Plaintiff and Appellant, v. CITY OF ORANGE, Defendant and
Respondent; LUTHERAN HIGH SCHOOL ASSOCIATION OF ORANGE COUNTY, Real Party in
Interest and Appellant.
END OF DOCUMENT