CALIFORNIA FARM BUREAU FEDERATION v. CALIFORNIA WILDLIFE CONSERVATION BOARD

Filed 9/21/06

CERTIFIED FOR PARTIAL PUBLICATION^*

COPY

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Colusa)

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Story continue from Part II ...

We conclude, despite the intended beneficial environmental purpose of this project, it is not categorically exempt from CEQA. Nor does it fall within the common sense exemption to CEQA. The WCB, as the lead agency, must conduct an initial study to determine if the project may have a significant effect on the environment. We shall affirm the trial court’s grant of a peremptory writ of mandate setting aside the WCB’s decision finding this project exempt from CEQA, requiring any future approvals of the project to be made in compliance with CEQA, requiring the condition of the property as it existed prior to the WCB’s approval of the project on February 28, 2002, to be used as the baseline for the environmental review, and prohibiting all activity relating to the project until such time.

II.

Award Of Attorney Fees

Code of Civil Procedure section 1021.5 (section 1021.5) codifies “the ‘private attorney general’ attorney fee doctrine“ under which attorney fees may be awarded to successful litigants. (Woodland Hills Residents Assn. v. City Council of Los Angeles (1979) 23 Cal.3d 917, 933 (Woodland Hills II).) “The doctrine rests upon the recognition that privately initiated lawsuits are often essential to the effectuation of the fundamental public policies embodied in constitutional or statutory provisions, and that, without some mechanism authorizing the award of attorney fees, private actions to enforce such important public policies will as a practical matter frequently be infeasible. [Citations.]” (Ibid.) “In short, section 1021.5 acts as an incentive for the pursuit of public interest-related litigation that might otherwise have been too costly to bring. [Citations.]” (Families Unafraid to Uphold Rural El Dorado County v. Board of Supervisors (2000) 79 Cal.App.4th 505, 511 (Families Unafraid).) Since a 1993 amendment, section 1021.5 has also allowed fees for enforcement of important rights affecting the public interest by one public entity against another public entity. (Stats. 1993, c. 645, § 2.)^[1]

Section 1021.5 authorizes the award of attorney fees (1) to a successful party, (2) in an action that has resulted in the enforcement of an important right affecting the public interest, (3) if a significant benefit has been conferred on the general public or a large class of persons, and (4) the necessity and financial burden of enforcement of that right are such as to make the award appropriate. (§ 1021.5; Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173, 176 (Bowman).)

“The trial court is to assess the litigation realistically and determine from a practical perspective whether these criteria have been met. [Citation.]” (Families Unafraid, supra, 79 Cal.App.4th at p. 511.) We then review the ruling under section 1021.5 for abuse of discretion. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 578.) “In reviewing the trial court’s decision, we must pay ‘“particular attention to the trial court’s stated reasons in denying or awarding fees and [see] whether it applied the proper standards of law in reaching its decision[]”’” (Families Unafraid, supra, at p. 512) “and, if so, whether the result was within the range of the court’s discretion [citation], i.e., whether there was a reasonable basis for the decision [citation].” (Bowman, supra, 131 Cal.App.4th at p. 177.) Section 1021.5 states the criteria for a fee award in the conjunctive, requiring each standard to be met to justify a fee award. (Punsly v. Ho (2003) 105 Cal.App.4th 102, 114 (Punsly); see Arnold v. California Exposition and State Fair (2004) 125 Cal.App.4th 498, 510 [court may deny a section 1021.5 fee request if one of the criteria is not met].)

“’Although [section] 1021.5 is phrased in permissive terms (the court “may” award), the discretion to deny fees to a party that meets its terms is quite limited. The [S]upreme [C]ourt in Serrano v. Unruh (Serrano IV) (1982) 32 Cal.3d 621, 633 . . . , noted that the private attorney general theory, from which [section] 1021.5 derives, requires a full fee award “unless special circumstances would render such an award unjust.”’” (Lyons v. Chinese Hospital Assn. (2006) 136 Cal.App.4th 1331, 1344, quoting Pearl, Cal. Attorney Fee Awards (Cont.Ed.Bar 2d ed. 2005) § 4.42, p. 132.)

In this case, the County and then the Farm Bureau with intervener Mora filed motions for attorney fees under section 1021.5 following the issuance of the peremptory writ by the trial court. Over the opposition of the State Agencies, the trial court granted both motions, ruling that both the County and the Farm Bureau “obtained a preliminary injunction to stop the State Agencies from ‘engaging in or performing any site preparations or earth movement, development of habitat water infrastructure, and establishment of habitat vegetation’ on the subject property. Further, [the County’s/Farm Bureau’s] litigation of two California Environmental Quality Act (‘CEQA’) petitions led the Court to find that the State Agencies’ decisions pertaining to the subject property violated CEQA. [The County’s/Farm Bureau’s] litigation of the CEQA petitions caused the recision [sic] and revocation of the State Agencies’ improper agreement and improper expenditure of public funds. The Court finds that the [County’s/Farm Bureau’s] enforcement of CEQA substantially contributed to the benefits inured to the general public.”

The State Agencies appeal contending the trial court erred because (1) the County and Farm Bureau obtained only limited success, noting the peremptory writ did not, as the trial court found in its orders granting the attorney fees, vacate or rescind the Conservation Easement itself, (2) the County and Farm Bureau did not vindicate an important right affecting the public interest, (3) the County and Farm Bureau did not confer a significant benefit on the general public or a large class of persons, and (4) the County and Farm Bureau’s stake in the outcome was not disproportionate to the burden assumed in pursuing the litigation. We disagree.

With respect to the State Agencies’ first contention, we reject their argument that the County and the Farm Bureau somehow were not successful parties because they achieved only limited success. “In order to effectuate the purpose of section 1021.5, courts ‘have taken a broad, pragmatic view of what constitutes a “successful party.”’ [Citation.] A ‘successful’ party means a ‘prevailing’ party ]citation], and ‘“’plaintiffs may be considered “prevailing parties” for attorney’s fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.’”’ [Citation.]” (Bowman, supra, 131 Cal.App.4th at p. 178, italics added.) Here the parties agreed to litigate the CEQA claims ahead of the Williamson Act and County code and ordinance causes of action and both the County and the Farm Bureau successfully sought a decision that this project was not exempt from CEQA compliance. The County and the Farm Bureau successfully obtained both a preliminary injunction stopping the construction work on the project and a peremptory writ setting aside the approvals of the project until there has been full compliance with CEQA. The trial court’s misstatement in its ruling that the litigation caused the rescission and revocation of the State Agencies’ “improper agreement” (presumably referring to the conservation easement, which was not set aside by the terms of the peremptory writ) does not change the County and the Farm Bureau into unsuccessful parties under section 1021.5.

The argument by the State Agencies that the County and Farm Bureau did not vindicate an important right affecting the public interest borders on frivolous. The litigation did not merely champion solely “local economic values[.]” The County and the Farm Bureau successfully established this project was not exempt from the environmental review requirements of CEQA. They obtained a writ requiring the State Agencies to, at a minimum, conduct an initial study of the project under CEQA to consider the possible environmental effects the project may have. Case law has clearly found, and parties have usually conceded, important public rights are at stake in litigation to enforce CEQA. (Bowman, supra, 131 Cal.App.4th at p. 177; San Bernardino Valley Audubon Society, Inc. v. County of San Bernardino (1984) 155 Cal.App.3d 738, 754; Friends of “B” Street v. City of Hayward (1980) 106 Cal.App.3d 988, 994 (Friends of “B” Street); Rich v. Benicia (1979) 98 Cal.App.3d 428, 436.)

The State Agencies next contend the County and Farm Bureau did not confer a significant benefit on the general public or a large class of persons. According to the State Agencies, “a discrete segment of the general public, at most, may have benefited.” The State Agencies point out the trial court itself did not find the litigation secured a “significant benefit” to the general public, but instead found, according to its order, the “enforcement of CEQA substantially contributed to the benefits inured to the general public.” (Italics added.) The State Agencies question the basis for even this finding, pointing out the court was mistaken in the relief obtained when the trial court stated the litigation resulted in rescission of the easement. The State Agencies assert the driving motivation behind the litigation was the economic benefit to the Farm Bureau’s members and the County’s residents. And this may have even backfired because, according to the State Agencies, the litigation may actually end up adversely affecting members of the Farm Bureau and the public by deterring the best economical use for marginal farmland.

We do not view the trial court’s awkward phrasing of its finding to indicate it failed to find the litigation secured a significant benefit to the general public nor do we find the court misunderstood the standard of law applicable to this prong of the tests under section 1021.5. We conclude the trial court did not abuse its discretion in finding the substantial benefit requirement met. With respect to this particular project, the litigation has ensured the State Agencies’ compliance with CEQA and permits a large class of persons to contribute their input towards the ultimate decision. (Schwartz v. City of Rosemead (1984) 155 Cal.App.3d 547, 558; Guidelines, § 15063, subd. (e) [“any person may submit any information in any form to assist a lead agency in preparing an initial study].) Moreover, the record describes this project as the first acquisition/restoration project under the North Central Valley, Conservation Reserve Enhancement Program. It is clear from the record and proceedings below that all parties, including the State Agencies, viewed this first project as a general test of the Agencies’ position that projects changing agricultural land to wildlife habitat are exempt from the environmental review requirements of CEQA. This litigation has resulted in a ruling that, at least as to projects in material respects similar to this one, the DFG and WCB must undertake at a minimum an initial study under CEQA. Thus, the County’s and Farm Bureau’s actions did confer a significant benefit on the general public or a large class of persons.

This leaves the requirement of section 1021.5 that “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.” (§ 1021.5.) Noting the trial court made no express findings on this point, the State Agencies claim this criterion is not met because the cost of litigation did not outweigh the County’s and the Farm Bureau’s personal stake in the outcome. Specifically, the State Agencies argue the Farm Bureau “has a tremendous stake in retaining land in agriculture for the direct economic benefit of its members.”^[2] Similarly, according to the State Agencies, the County “is keenly interested in ensuring that as much land within its borders as possible remains in commercial agricultural production.” The County and the Farm Bureau “brought these law suits for the express purpose of protecting the tax base of the County and the economic interests of some members of the Farm Bureau.”

Given that this fourth prerequisite to a fee award under section 1021.5 was thoroughly briefed at the trial court level, we conclude the trial court’s award of attorney fees contains an implied finding that the financial burden criteria was met in this case. The trial court did not abuse its discretion in finding the necessity and financial burden of enforcement was such as to make the award appropriate in this case.

The financial burden of enforcement criterion of section 1021.5 is met “’when the cost of the claimant’s legal victory transcends his personal interest, that is, when the necessity for pursuing the lawsuit placed a burden on the plaintiff “out of proportion to his individual stake in the matter.”’” (Woodland Hills II, supra, 23 Cal.3d at p. 941, quoting County of Inyo v. City of Los Angeles (1978) 78 Cal.App.3d 82, 89.) While normally the “personal interest” involved in this question is a financial interest (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 321), this court has held personal interest can also include nonfinancial interests, provided the interest is “specific, concrete and significant, and these attributes [are] based on objective evidence.” (Families Unafraid, supra, 79 Cal.App.4th at pp. 514, 516, original italics.) That is, “the less direct or concrete a personal interest someone has, the more likely he or she will satisfy the element and be eligible for fees under the statute. Thus, in practice, the necessity and financial burden element of section 1021.5 tends to be analyzed like golf is scored: the lower the better.” (Hammond v. Agran (2002) 99 Cal.App.4th 115, 122 (Hammond).) The point is, to be entitled to fees under section 1021.5, the “claimant’s objective in the litigation must go beyond--’transcend’--those things that concretely, specifically and significantly affect the litigant . . . to affect the broader world or ‘general public’ as the statute puts it.” (Hammond, supra, at p. 127.)

Here the State Agencies claim the Farm Bureau has a personal stake in retaining land in agriculture for “the direct economic benefit of its members.” The State Agencies contend the County was also “keenly interested” in retaining land in commercial agriculture for the protection of the County’s tax base. The State Agencies claim the real concern of the Farm Bureau and the County is the “adverse (if speculative) domino effect on the agricultural industry” of conversion of commercial farmland to habitat.

It is true that in assessing the personal interest of an association claiming fees pursuant to section 1021.5, a court may look to the personal interests of the members of that association. For example, in California Licensed Foresters Assn. v. State Bd. of Forestry (1994) 30 Cal.App.4th 562 (CLFA), this court determined the plaintiff association held a financial stake in pursuing the litigation on behalf of its membership “to the same extent as its members[]” since the association’s “very existence depend[ed] upon the economic vitality of its members and any benefit or burden derived by CLFA from this lawsuit ultimately redounds to the membership.” (Id. at p. 570.) We concluded the association did not qualify as a private attorney general under section 1021.5 because the cost of the litigation was proportionate to the association’s (members’) financial stake in the outcome as specifically shown by the evidence in the record. (CLFA, supra, at pp. 570-574.)

However, in contrast to the litigation involved in CLFA, any economic benefit to the membership of the Farm Bureau (or to the County’s residents by analogy) from this litigation seeking to set aside the State Agencies’ approval of this project as exempt from CEQA is completely speculative. This litigation sought to require the State Agencies to assess the environmental effects of the project before proceeding with the project. Indeed, as the State Agencies point out in their earlier argument against attorney fees, the trial court did not rescind the acquisition of the conservation easement. Although broadly asserted by the State Agencies, there is nothing in the record showing a specific link between this CEQA litigation and any economic benefit to the Farm Bureau or its members or the County. The State Agencies have not explained, in opposition to the motions for fees or on appeal, how this litigation forcing them to comply with CEQA prior to approval of the project would necessarily result in the retention of this land as agricultural land or precisely how, and in what amount, such retention, if it did result, would economically benefit the Farm Bureau members or County residents. The record does not contain evidence of any specific economic cost to the Farm Bureau, its members, or the County if the State Agencies had been allowed to proceed with this project without CEQA review. The State Agencies’ opening brief affirmatively admits any fear by the County and/or the Farm Bureau of an adverse domino effect on the agricultural industry from this or similar projects is speculative. And assuming this litigation was motivated by a generalized interest in the retention of farmland as presumptively beneficial to the common economic well-being of the area, such generalized policy interest is not the kind of specific, concrete personal interest, pecuniary or non-pecuniary, that has been found to disqualify a party from fees under section 1021.5. Some illustrative examples may be helpful.

In Satrap v. Pacific Gas & Electric Co. (1996) 42 Cal.App.4th 72 (Satrap), the plaintiff succeeded in his action for breach of contract, wrongful termination in violation of public policy, and invasion of privacy. (Id. at p. 76.) The trial court denied plaintiff his attorney fees, which he had sought pursuant to section 1021.5. (Satrap, supra, at p. 76.) The Court of Appeal affirmed the denial since plaintiff’s personal stake, his expected monetary recovery from defendant, was at the time important litigation decisions were being made always more than enough to warrant incurring the costs. (Id. at pp. 78-79.)

In Beach Colony II v. California Coastal Commission (1985) 166 Cal.App.3d 106, the court found Colony II, a development company, had vindicated important public rights in its challenge to certain conditions placed on its proposed development by the Coastal Commission. Nevertheless, the court denied the company its attorney fees, concluding the company had a substantial financial stake in the outcome because its “victory apparently makes it commercially feasible to build . . . 10 [condominium] units and save $300,000 in offsite improvement expenses, or to sell the restorable property to another developer.” (Id. at p. 114.) The court stated, “Section 1021.5 was not designed as a method for rewarding litigants motivated by their own pecuniary interests who only coincidentally protect the public interest.” (Ibid.; accord In Planned Parenthood v. City of Santa Maria (1993) 16 Cal.App.4th 685, 691 [Planned Parenthood denied fees in lawsuit challenging conditions placed on grant for new clinic where the interests of the clinic patients and general public were incidental to Planned Parenthood’s primary objective of obtaining grant money, no evidence presented that litigation transcended Planned Parenthood’s financial interest and imposed a financial burden disproportionate to its individual stake in the matter].)

In County of Inyo v. City of Los Angeles, supra, 78 Cal.App.3d 82, Inyo County had successfully challenged the sufficiency of an EIR the city had submitted regarding its plan to extract and export groundwater from the county. This court denied the county’s request for fees under the private attorney general theory. We stated, “Inyo County went to court as champion of local environmental values, which it sought to preserve for the benefit of its present and future inhabitants. This action is not a ‘public interest’ lawsuit in the sense that it is waged for values other than the petitioner’s. The litigation is self-serving. The victory won by the county in 1977 bulked large enough to warrant the cost of winning it. The necessity for enforcement by Inyo County did not place on it ‘a burden out of proportion to [its] individual stake in the matter.’ [Citation.]” (Id. at p. 90; accord City of Hawaiian Gardens v. City of Long Beach (1998) 61 Cal.App.4th 1100, 1113 [city was not entitled to fees for suing neighboring city to prevent closure of a street bordering both cities, limited burden of brief trial court proceedings did not transcend opposing city’s interest in controversy].)

In Williams v. San Francisco Bd. of Permit Appeals (1999) 74 Cal.App.4th 961, the court found the plaintiff’s interest in protecting the “aesthetic integrity” of his neighborhood of Victorian houses and his own right to privacy and “access to light, air and views” from the construction of an architecturally incompatible four-story, three-unit, 7,000-square-foot apartment building immediately next door to plaintiff was a sufficient personal interest to disqualify him from recovery of fees under section 1021.5. (Williams v. San Francisco Bd. of Permit Appeals, supra, at pp. 963, 970-971; accord Christward Ministry v. County of San Diego (1993) 13 Cal.App.4th 31, 49-50 [fees denied where the plaintiff retreat’s private interest in its panoramic ocean view was the real basis for its action].)

In Hammond, supra, 99 Cal.App.4th 115, defendant, a political candidate, was denied attorney fees under section 1021.5 for the portion of his defense of the litigation over his candidate statement in the voter’s pamphlet because he had a “pressing immediate need” to have the statement in the pamphlet and an “intense personal interest[]” in defending the accuracy of statement. (Id. at pp. 128-129.)

In Punsly, supra, 105 Cal.App.4th at pp. 115-118, a mother was denied fees incurred in a visitation dispute with her daughter’s paternal grandparents as the mother’s strong parental interest in pursuing what she saw as her child’s best interest was paramount in her pursuing the litigation.

In this case the Farm Bureau and County obtained no monetary recovery in the litigation (Satrap, supra, 42 Cal.App.4th at pp. 78-79) nor did they reap any direct financial reward as a result of being successful in the litigation. (Beach Colony II, supra, 166 Cal.App.3d at p. 114; Planned Parenthood v. City of Santa Maria, supra, 16 Cal.App.4th at p. 691.) The Farm Bureau and the County were not protecting solely local environmental values, which local values “bulked large enough to warrant the cost” of the litigation. (County of Inyo, supra, 78 Cal.App.3d at p. 90; City of Hawaiian Gardens v. City of Long Beach, supra, 61 Cal.App.4th at p. 1113.) The situation in this case is not equivalent to a next-door neighbor’s defense of his own immediate, significant, and concrete aesthetic interests. (Williams, supra, 74 Cal.App.4th at pp. 970-971; Christward Ministry, supra, 13 Cal.App.4th at pp. 49-50.) Nor is it equivalent to the specific, immediate concrete personal concerns present in Hammond, supra, 99 Cal.App.4th at pp. 128-128, and Punsly, supra, 105 Cal.App.4th at pp. 115-118. The objectives of the Farm Bureau and the County in this litigation went “beyond--’transcend[ed]’--those things that concretely, specifically and significantly affect[ed] the[m] . . . to affect the broader world or ‘general public’ as the statute puts it.” (Hammond, supra, at p. 127.)

The trial court did not abuse its discretion in awarding fees to the Farm Bureau and the County pursuant to section 1021.5.

DISPOSITION

The judgment granting a peremptory writ of mandate and the orders granting attorney fees are affirmed. Respondents are awarded their costs on appeal. (Cal. Rules of Court, rule 27(a).)

CANTIL-SAKAUYE , J.

We concur:

SCOTLAND , P.J.

HULL , J.

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^* Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of part II.

^[1] Section 1021.5 provides in relevant 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.”

^[2] But the State Agencies also state: “The interest advanced benefits only the Farm Bureau’s members who are interested in a requirement that agricultural land be restricted to commercial production.” We are uncertain of the factual basis for this statement or the legal deduction we are supposed to draw from it.