RIVERWATCH v. COUNTY OF SAN DIEGO DEPARTMENT OF ENVIRONMENTAL HEALTH
Filed 6/12/09 Certified for publication 7/2/09 (order attached)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
RIVERWATCH et al., Plaintiffs and Respondents, v. COUNTY OF SAN DIEGO DEPARTMENT OF ENVIRONMENTAL HEALTH et al., Defendants and Appellants; GREGORY CANYON LTD., et al., Real Parties in Interest and Appellants. | D049216 (Super. Ct. No. GIN038227) |
STORY CONTINUE FROM PART I.
The court rejected DEH's and GCL's arguments that Pala Band's individual stake in the litigation transcended the cost of litigation. Relying on Smith's declaration that Pala Band did not foresee that the proposed landfill would economically impact its casino, the court expressly found that "there was no monetary value to pursuing the litigation." It also ruled that the evidence offered by DEH and GCL to counter Pala Band's claim of no financial interest was incompetent and inadmissible. With regard to the argument the Pala Band had a strong individual interest in protecting the sacred religious sites, the court found that Pala Band was protecting the interests of all Luiseo people, not just Pala Band. The record provides a reasonable basis for the court's findings. (Colusa, supra, 145 Cal.App.4th at p. 648.) We therefore conclude that it did not abuse its discretion in ruling that the costs of litigation transcended Pala Band's individual interests.
In reaching this conclusion, we reject the arguments of DEH and GCL on appeal that the trial court: (1) applied the wrong test for determining financial burden; (2) improperly shifted the burden of proof from Pala Band to DEH and GCL; and (3) failed to measure Pala Band's noneconomic interest in preserving its sacred sites.
DEH and GCL contend that the trial court improperly balanced the public interest against Pala Band's personal motivation in ruling on the necessity and financial burden criterion. They cite in support of this contention the court's comment during the hearing that there was "some authority . . . that bringing a CEQA action per se is considered to be in the public interest, or affecting the public interest, regardless of what the underlying motive may be." The court's comments are of no consequence because the statement of decision acknowledged and applied the proper test -- whether the cost of litigation was disproportionate to Pala Band's individual stake in the matter.
DEH and GCL cite the following language in the introductory section of the petition in support of their claim that the court improperly shifted the burden of proof: "The Pala Band's reservation boundaries are adjacent to the boundaries of the proposed site for the Gregory Canyon landfill. The Pala Band has long opposed the Gregory Canyon Landfill project because of its many impacts, including impacts to water quality, air quality, endangered species, traffic, traffic safety, and noise. The construction and operation of the landfill in Gregory Canyon will also desecrate Gregory Mountain and Medicine Rock, two religious sites of great importance considered sacred by the Luiseo people, including the Pala Band. Consequently, if allowed to proceed, the proposed Landfill project will adversely affect the Pala Band. The relief sought in this action would redress those injuries." DEH and GCL acknowledge Smith's declaration that the Pala Band did not foresee that the landfill would economically impact the casino, but argue that Pala Band had the burden to show economic impact on its land values as a whole and "provided no evidence concerning the lack of impact on the value of its land apart from the casino." The record does not support this argument. The Smith declaration also stated that the casino was the tribe's main source of revenue. Given this evidence of financial interest, the burden shifted to DEH and GCL to offer admissible evidence to rebut Pala Band's claim of no financial interest. The court properly rejected the only evidence they offered -- a Yahoo website that purportedly listed the room rates and number of rooms at the resort. There was no error.
There is also no merit in DEH's and GCL's argument that the court failed to "measure" Pala Band's noneconomic interest in its sacred sites in ruling that Pala Band satisfied the necessity and financial burden criterion. The court expressly stated in the statement of decision that it had considered the argument "Pala's individual stake in the litigation transcended the cost of the litigation." The court simply rejected the claim -- raised for the first time at the hearing on the attorney fee motion -- that protection of the sacred sites was an individual interest "far transcending anything the public [interest] did." To the extent DEH's and GCL's claim that the trial court failed to measure Pala Band's noneconomic interests can be read as a claim that the court failed to give the noneconomic interests their proper weight, we reject that argument as well.
DEH and GCL rely on Punsly, supra, 105 Cal.App.4th 102, Hammond, supra, 99 Cal.App.4th 115, and Christward Ministry v. County of San Diego (1993) 13 Cal.App.4th 31 (Christward), to support their argument that Pala Band's noneconomic interests were paramount and barred recovery of attorney fees. The facts of this case are distinguishable from those in Punsly, Hammond and Christward. As we explain, Pala Band's efforts to enforce CEQA and Proposition C were not merely "coincidental to the attainment of" Pala Band's personal goals (Bowman, supra, 131 Cal.App.4th at p. 181), and the court did not abuse its discretion in ruling that Pala Band satisfied the necessity and financial burden criterion.
In Punsly, defendant Manwah Ho sought attorney fees under the private attorney general doctrine after she prevailed in a visitation dispute with her daughter's paternal grandparents. Ho argued that because the appellate court upheld her position in a published opinion, she satisfied the requirements of section 1021.5. This court ruled that the trial court did not abuse its discretion when it determined that "the litigation had primarily been pursued for the personal benefit of Ho and therefore was not the type of action contemplated by section 1021.5." (Punsly, supra, 105 Cal.App.4th at p. 118.) Using rhetorical questions, we explained that "Ho's strong, objectively ascertainable personal interests fully justified the litigation, along with any burden incurred to pursue it, and these interests act[ed] as a block to a fees award from the Punslys. . . . [W]here Ho's parental interests in assessing and pursuing her child's bests interests, as she saw them, were admittedly paramount in her mind, how can we say some other incentive was needed to pursue this litigation? How can we conclude otherwise, than that her personal interest in the issues must be deemed sufficient to block any potential fee award that would have been grounded in any trial court determination that achieving a 'greater public good' [citation] was the main incentive for this litigation, or grounded in any trial court determination that the burden of achieving this 'greater public good' was proportionally greater than her individual stake in the matter?" (Ibid.) The case before us is different. There is nothing in the record to show that Pala Band's concern about the impact of the landfill project on the sacred sites was the kind of intensely personal interest present in Punsly. The allegations of the petition show that Pala Band was concerned about the impact of the landfill project on water quality, air quality, endangered species, traffic, traffic safety and noise, as well as its impact on two religious sites.
For reasons similar to those articulated in Punsly, the appellate court in Hammond affirmed denial of a portion of the attorney fees requested under section 1021.5. Hammond involved a challenge to the accuracy of the statement candidate Larry Agran submitted for a city council election. (Hammond, supra, 99 Cal.App.4th at p. 119.) The trial court reasoned that Agran "had a 'personal stake' that was 'sufficient enough motivation to pursue the litigation without an award of attorney's fees.' " (Id. at p. 120.) The appellate court agreed, concluding that as a candidate Agran had a "specific, concrete and significant interest in defending the veracity of his candidate's statement: His personal credibility was at stake." (Id. at p. 118.) At the same time, the court reversed in part, ruling that Agran was entitled to the portion of attorney fees attributable to "the important issue of the scope of Elections Code section 13307 . . . [which] transcended his personal interest and . . . resulted in the enforcement of an important public right." (Id. at p. 119.) Again, there is nothing in the record before us to suggest that Pala Band's personal interest was equivalent to Agran's. As we explained, Pala Band's litigation raised numerous environmental and constitutional questions and transcended any undefined personal interest Pala Band had in mitigating impacts to its sacred sites.
DEH and GCL also suggest that Christwardhas "marked similarities" to this case because the petitioner sought attorney fees for work that challenged the adequacy of a EIR prepared in connection with the expansion of a landfill near property used by Christward for a religious retreat. (Christward, supra, 13 Cal.App.4th at pp. 36, 39.) However, Christward objected to the project on grounds it would obstruct the panoramic view of the surrounding area, not because it interfered with religious practice. (Id. at pp. 39, 48.) Unlike the case before us, the litigation in Christward related directly to the project's impact on the operation of the retreat center. The trial court denied attorney fees under section 1021.5, stating that "Christward's 'private interests . . . with reference to the use of their property [was] the real basis for [the] action. . . .' " (Id. at p. 49.) This court agreed that Christward's success did not confer a public benefit and affirmed denial of attorney fees. Nor did we "quarrel with the reasonableness of the court's assessment of Christward's private interest in the litigation." (Id. at p. 50.)
Having concluded that Pala Band satisfied section 1021.5's necessity and financial burden criterion, we need not address the question whether RiverWatch's public interest supported the attorney fee award.
III
THE LITIGATION CONFERRED A SIGNIFICANT BENEFIT
DEH and GCL also contend that RiverWatch and Pala Band failed to show that "the litigation has had a beneficial impact on the public as a whole or on a group of private parties which is sufficiently large to justify a fee award." (Beasley v. Wells Fargo Bank (1991) 235 Cal.App.3d 1407, 1417, overruled on another ground in Olson v. Automobile Club of Southern California (2008) 42 Cal.4th 1142, 1151.) Unlike the separate substantial benefit doctrine, "the 'significant benefit' that will justify an attorney fee award need not represent a 'tangible' asset or a 'concrete' gain but, in some cases, may be recognized simply from the effectuation of a fundamental constitutional or statutory policy." (Woodland Hills, supra, 23 Cal.3d at p. 939, citing Serrano, supra, 20 Cal.3d at p. 42.) "The benefit may be conceptual or doctrinal and need not be actual or concrete; further, the effectuation of a statutory or constitutional purpose may be sufficient." (Braude v. Automobile Club of Southern California (1986) 178 Cal.App.3d 994, 1011.) Thus, successful CEQA actions often lead to fee awards under section 1021.5. (See, e.g., Laurel Heights Improvement Ass'n. v. Regents of the University of California (1988) 47 Cal.3d 376, 427; Galante Vineyards v. Monterey Peninsular Water Management District (1997) 60 Cal.App.4th 1109, 1125-1128.) Moreover, the extent of the public benefit need not be great to justify an attorney fee award. (See, e.g., Protect Our Water v. County of Merced (2005) 130 Cal.App.4th 488, 496 [significant public benefit where litigation prompted agency to improve methods of creating and managing its CEQA records].) The trial court determines "the significance of the benefit, as well as the size of the class receiving benefit, from a realistic assessment, in light of all the pertinent circumstances, of the gains which have resulted in a particular case." (Woodland Hills, supra, 23 Cal.3d at pp. 939-940.)
Here, the court expressly found that "the result of petitioners' action was to require [DEH and GCL] to address the traffic impacts associated with the project and to ensure that the project will address the need for an adequate water supply. Petitioners' action ensured that the environmental impacts associated with the project are adequately mitigated. This assurance that the impacts of the project are properly assessed and mitigated constitutes a significant benefit to the environment and thus to the public at large. The benefit is significant and widespread."
DEH and GCL argue that the trial court confused the question whether there was a public interest with the question whether RiverWatch and Pala Band conferred a significant benefit on the general public. They acknowledge that environmental protection and compliance with regulatory provisions are "important rights of the general public," but contend that they do not satisfy the significant benefit criterion. DEH and GCL reason that "[i]f compliance with CEQA and other environmental regulatory provisions were enough, any petitioner partly successful in its challenge to the adequacy of an EIR, no matter how small the failure to comply with regulations, would be entitled to recover attorney fees." They contend that the court failed to properly assess "the gains which have resulted" in this case. (Woodland Hills, supra, 23 Cal.3d at p. 940.) DEH and GCL stress that the litigation established no statewide precedent, changed no rules or regulations, and upheld no fundamental rights. RiverWatch, Pala Band and Oceanside simply asserted defects in the CEQA process which, once corrected, were unlikely to change the landfill project.
We reject the effort of DEH and GCL to minimize the benefits this litigation conferred on the general public. Each of the areas that the trial court found inadequate under CEQA involved an important environmental consideration. With drought a persistent threat in California, public agencies and members of the public living and working near the proposed project site benefitted from the court requiring DEH to specifically identify and address the sources of water necessary to construct and operate the landfill. Members of the public also had legitimate concerns about the impact of trucking water to the site -- an option only casually mentioned in a 2004 update to the FEIR and "never studied or previously proposed." The significant benefit criterion is satisfied where, as here, the litigation permits affected parties to provide additional input on remand -- in this case, to voice their concerns about environmental impacts on water sources, traffic and mitigation plans involving open space. (Bowman, supra, 131 Cal.App.4th at p. 180.) The court did not abuse its discretion in finding that the litigation conferred "a significant benefit to the environment and thus to the public at large."
IV
THE LITIGATION WAS SUCCESSFUL
DEH and GCL argue that the court abused its discretion in failing to reduce the attorney fee award by 50 percent to account for RiverWatch's and Pala Band's lack of success in numerous issues in the case. There is no merit in this argument.
Courts take a "broad, pragmatic view of what constitutes a 'successful party' " in order to effectuate the policy underlying section 1021.5. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 565.) The party seeking attorney fees need not prevail on all its claims alleged in order to qualify for an award. (See, e.g., Harbor v. Deukmejian (1987) 43 Cal.3d 1078, 1103; Daniels v. McKinney (1983) 146 Cal.App.3d 42, 55.) The litigant is considered "successful" under section 1021.5 if the litigation "contributed substantially to remedying the conditions at which it was directed." (Planned Parenthood v. Aakus (1993) 14 Cal.App.4th 162, 174.) The critical fact is the impact of the litigation. (Ibid.) In other words, the "successful" party under section 1021.5 is generally the "prevailing" party, that is, the party that " ' "succeed[s] on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." ' [Citation.]" (Tipton-Whittingham v. City of Los Angeles (2004) 34 Cal.4th 604, 610; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1292.) Prevailing counsel who qualify for an award under section 1021.5 are entitled to compensation for all hours reasonably spent. (Serrano v. Unruh (1982) 32 Cal.3d 621, 632-633.)
Acknowledging the foregoing principles, the trial court found that although it had not granted the petition in all respects, RiverWatch and Pala Band prevailed on three significant issues and were therefore successful within the meaning of section 1021.5.
In their statement of the case, DEH and GCL represent that RiverWatch, Pala Band and Oceanside "alleged a multitude of separate violations, resulting in sixty separate claims." They maintain that "[t]he fact that [they] raised, and failed on, so many different claims justifies a reduction to the lodestar." DEH and GCL do not go so far as to assign a numerical rate of success to justify a reduction in the amount of attorney fees. However, their argument fails to account for the qualitative as opposed to quantitative significance of the issues included in the writ of mandate. The petition's clear intent was to enforce compliance with CEQA, Proposition C, the San Diego general plan and zoning ordinance, and the California Code of Regulations. Having presided over briefing and trial, the court was in the best position to assess the significance of the issues remanded for further consideration and action by DEH. On appeal, DEH and GCL fail to establish that there is no reasonable basis for the trial court's findings. (FUTURE, supra, 79 Cal.App.4th at pp. 511-512.) We also note that the court reduced the amount of attorney fees by nearly 50 percent on grounds other than those argued by DEH and GCL on appeal.
DISPOSITION
The judgment is affirmed. Respondents Riverwatch and Pala Band shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
AARON, J.
Filed 7/2/09
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
RIVERWATCH et al., Plaintiffs and Respondents, v. COUNTY OF SAN DIEGO DEPARTMENT OF ENVIRONMENTAL HEALTH et al., Defendants and Appellants GREGORY CANYON LTD. et al., Real Parties in Interest and Appellants. | D049216 (Super. Ct. No. GIN038227) ORDER CERTIFYING OPINION FOR PUBLICATION |
THE COURT:
The opinion filed June 12, 2009 is ordered certified for publication.
The attorneys of record are:
Allen, Matkins, Leck, Gamble & Natsis, Patrick E. Breen, Mark J. Hattam, and Kathryn D. Horning, for Appellants and Real Party in Interest Gregory Canyon, Ltd.
Everett L. DeLano for Respondent RiverWatch; Procopio, Cory, Hargreaves & Savitch and Walter E. Rusinek for Respondent Pala Band of Mission Indians.
HUFFMAN, Acting P. J.
Copies to: All parties
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