Scilacci v. PlacerCountyBd. of Supervisors

Filed 5/31/07 Scilacci v. Placer County Bd. of Supervisors CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

----

Plaintiffs Kirk and Michelle Scilacci appeal from an order denying their motion for attorney fees under the private attorney general doctrine (Code Civ. Proc., 1021.5; hereafter section 1021.5) after they were partially successful in challenging a project to move a residence, clubhouse, and bird growing facilities for a hunting club and to construct a shooting range on the Coon Creek hunting and fishing preserve. They contend they met the statutory requirements for attorney fees under section 1021.5 and the trial court abused its discretion in denying an award of attorney fees without articulating any special circumstances.

We find no abuse of discretion. Although the evidence as to the Scilacciss pecuniary interest in pursuing the lawsuit was conflicting, there was substantial evidence from which the trial court could determine the costs of litigation were not out of proportion to the Scilacciss individual stake. The Scilaccis had purchased neighboring property at below market value before the lawsuit commenced and had taken actions that indicated an interest in developing that property and therefore an interest in challenging the proposed project.

FACTUAL AND PROCEDURAL BACKGROUND

The underlying suit, in which the Scilaccis and others challenged the project, was appealed to this court and we issued an opinion in September 2006. (Fickewirth v. County of Placer (Sept. 7, 2006, C04669) [nonpub. opn.], hereafter Fickewirth.) We take the facts concerning the background of this case from that opinion.

In 2001, Lakeview Farms learned that the site of its business and the home of its owner, Don Norris, was to be acquired by CalTrans as part of the Highway 65 bypass project. Lakeview Farms intended to relocate the residence, clubhouse, and bird growing facilities (35,000 pheasants, 2,500 chukars, 1,000 quail, and 100 turkeys) to a 1,000-acre site known as Coon Creek Preserve. Approximately 80 acres would be set aside for the residence, clubhouse, barns, and bird growing and bird cleaning facilities. The remaining 920 acres had been committed through easements to upland game and waterfowl habitat. The new clubhouse would be 5,980 square feet and accommodate 450 members. It would include a retail sales area for hunting supplies, including guns and ammunition, and a deli and coffee facility that would eventually provide breakfast and lunch. The hours of operation would be 6:00 am to 5:00 pm five days a week and 6:00 am to 9:00 pm two days a week. There would be parking for 170 vehicles and 20 RVs. The clubhouse would host special events including field trail events, competitive shooting events, weddings, public fundraising events, corporate and small business meetings, organizational events for Ducks Unlimited, CWA and Pheasants Forever, classroom training in habitat restoration, wildlife management and conservation, and public hunter safety courses. Special events were planned for one to four times a week.

Lakeview Farms would offer fishing and dog training in accordance with federal and state laws and Department of Fish and Game regulations. It would also host recreational shooting events and create 14 sporting clay stations and 5 trap-shooting stations, with the same hours of operation as the clubhouse. Neighbors opposed the project, particularly the noise, lead, and lighting from the proposed clay and trap shooting stations. There was also concern about the potential pollution from the confined animal facility. After various reviews by and appeals to the planning commission, the zoning administrator, and the board of supervisors, the Placer County Board of Supervisors, by a vote of three to two, approved the entire project with a negative declaration and a minor use permit. One of the neighboring families, the Fickewirths, petitioned for a writ of mandate to vacate and set aside the negative declaration and the minor use permit. The Fickewirths challenged only the analysis of the noise impacts of the sporting clay shooting facility. The trial court dismissed this petition. On appeal, this court reversed that decision, finding that preparation of an environmental impact report was required because there was substantial evidence to support a fair argument that the project may cause a significant adverse environmental impact. This portion of the case is not before us in this appeal.

The Scilaccis were tenants on the Bonnefield farm in the area; they purchased the farm before they petitioned for a writ of mandate. Their petition was much broader in scope; they sought to stop the entire project and subject it to environmental review. They asserted the Countys actions were a prejudicial abuse of discretion with respect to: the description of the project; the analysis of the environmental impact of the lead shot from shooting events; the analysis of adverse noise, hazardous waste, light, traffic, public health, cultural and ambiance impacts; compliance with the zoning ordinance; and description of mitigation measures.

The trial court granted the petition in part. It set aside the mitigated negative declaration on the grounds that the potential impacts of lead harvesting from the shooting course were not adequately considered; the bird raising facility was a chicken/turkey ranch under the Placer County Code and as such required a conditional use permit; and if a conditional use permit was granted, compliance with state regulations concerning water quality and confined animal facilities was required.

The trial court found the bird raising facility and sporting clay course were severable from the remainder of the project. The court issued a peremptory writ of mandamus, vacating the mitigated negative declaration for the pheasant pens and sporting clay range. The court awarded the Scilaccis costs as the prevailing party and reserved jurisdiction to consider a motion for attorney fees.

The Scilaccis moved for an award of attorney fees under section 1021.5. They argued they met the statutory criteria for an award because they were successful in enforcing the California Environmental Quality Act (CEQA), an important right affecting the public interest that conferred a significant benefit on the public. The necessity and burden of private enforcement was shown because they received no financial benefit from the lawsuit. They set the lodestar amount at $113,278.75, comprised of 348.55 hours at $350 an hour. They sought a multiplier of two and additional fees for the motion for attorney fees, for a total of $244,747.

The Scilaccis claimed a multiplier was appropriate not only due to the complexity and contingent nature of the case, but also due to Lakeview Farmss oppressive conduct. They claimed Lakeview Farms tried to purchase the Bonnefield farm out from under them and visited the Farm Services Agency in an attempt to interfere with their participation in [a] federal crop program.

In a declaration, the Scilacciss attorney, Richard Ross, stated he initially charged them $200 per hour. It soon became apparent that the case was more complex and would cost more than the Scilaccis could afford. Ross told them he would undertake the case without charge for any fees he could recover.

Lakeview Farms opposed a fee award. Lakeview Farms argued the Scilaccis were not successful parties because 17 of their 20 claims failed and even Kirk Scilacci admitted he did not believe he was successful. Lakeview Farms characterized the partial success as simply requiring correction of procedural defects and argued it did not confer a significant benefit on the public. Further, the Scilaccis had a direct financial interest in halting the project. They had purchased the Bonnefield farm at a below market rate just before filing the lawsuit. They had explored development options and had received many offers to purchase the property.

In support of the opposition, Lakeview Farms provided evidence of the sale of the Bonnefield farm to the Scilaccis for $1.885 million. Norris, the owner of Lakeview Farms, had offered Bonnefield $3,100 an acre for the 1090.4-acre property (a total of $3.38 million). In his deposition, Kirk Scilacci admitted he was free to develop the property and had had several discussions with government officials about development possibilities. He requested that the property be included in the sphere of influence for the City of Lincoln.

Richland Communities, the developer of the Galleria Mall and the Highway 65 corridor, had options on adjacent properties. Jack Bray of Richland Communities regularly stopped at the Scilacciss home when he was in town. Scilacci got calls and letters all the time about development; he had received one offer, but there were no current negotiations to develop or sell the property. Scilacci testified he would not object to housing developments in the area, although he conceded the Lakeview Farms project was more compatible with farming than a housing development would be.

Michelle Scilacci testified in her deposition that since they put the property in the sphere of influence, they received unsolicited calls from realtors and developers.

In reply, the Scilaccis declared they had operated the farm in exchange for a portion of the crops; they never thought they would own it. They believed Mrs. Bonnefield would leave it to her church. They felt compelled to buy it to preserve their livelihood once Lakeview Farms became interested in buying it. They had spent tens of thousands of dollars upgrading the irrigation systems and were not negotiating to sell the farm. Challenging Lakeview Farms had not benefited them financially; instead, their family paid a significant emotional toll.

Without stating any reasons, the trial court denied the motion for attorney fees.

DISCUSSION

Attorney fees are recoverable under section 1021.5 (1) by 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 private enforcement are such as to make the award appropriate. The statutes purpose is to encourage public interest litigation that might otherwise be too costly to pursue. [Citation.] (Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173, 176.)

We review rulings under section 1021.5 for an abuse of discretion, determining whether the trial court applied the proper legal standards and, if so, whether the result was within the range of the trial courts discretion. (Lyons v. Chinese Hospital Assn. (2006) 136 Cal.App.4th 1331, 1344; Bowman v. City of Berkeley, supra, 131 Cal.App.4th at p. 177.) Where, as here, the court was not asked to, and did not make findings on substantial factual issues, we must infer all findings necessary to support the judgment and proceed to examine the record to determine if they are based on substantial evidence. (Beach Colony II v. California Coastal Com. (1985) 166 Cal.App.3d 106, 110.)

The award of fees under section 1021.5 is an equitable function, and the trial court must realistically and pragmatically evaluate the impact of the litigation to determine if the statutory requirements have been met. [Citation.] (Concerned Citizens of La Habra v. City of La Habra (2005) 131 Cal.App.4th 329, 334 (Concerned Citizens).) This determination is best made by the trial court and we will not disturb it on appeal unless we are convinced it is clearly wrong and constitutes an abuse of discretion. (Ibid.)

Where the statutory criteria of section 1021.5 are met, the trial court has limited discretion to deny a fee award. (Lyons v. Chinese Hospital Assn., supra, 136 Cal.App.4th at p. 1344.) A party who meets the statutory criteria should receive a fee award unless special circumstances make such an award unjust. (Ibid.) Since the trial court cited no special circumstances, we consider whether the trial court abused its discretion in finding that the Scilaccis did not meet the requirements of section 1021.5.

The Scilaccis contend they met all the requirements of section 1021.5. They argue they were successful in preventing construction of a confined animal facility on a flood plain and the discharge of 15 tons of lead into a federally protected wetlands. Lakeview Farms, on the other hand, asserts (1) by Kirk Scilaccis admission, the lawsuit was not successful and did not result in the enforcement of an important public right; (2) the Scilaccis did not confer a significant benefit on a large class or persons or the public; and (3) the Scilacciss personal pecuniary interest is proportionate to the cost of private enforcement.^[1] We consider each in turn.

Successful Enforcement of Important Public Right

Lakeview Farms contends the Scilaccis were not successful parties. They rely on Kirk Scilaccis deposition answer that in light of what Im seeing going on over there right now, he did not consider the litigation successful. In an award of attorney fees, the terms prevailing party and successful party are synonymous. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 570.) In its order, the trial court found the Scilaccis were the prevailing party.

Partial success may be sufficient to sustain an award of attorney fees if there is success on a significant issue which achieves some of the benefit the party sought. (Bowman v. City of Berkeley, supra, 131 Cal.App.4th at p. 178; Sokolow v. County of San Mateo (1989) 213 Cal.App.3d 231, 243.)

Here, the Scilacciss lawsuit was successful in two regards. First, it forced the project proponents to provide additional information on the environmental impact of harvesting lead from the shooting range. Although this court affirmed the order requiring only additional information, we noted the information in the administrative record about the toxic nature of lead and the difficulty in cleaning up shooting ranges appeared to support a fair argument that the spent lead shot may have an adverse effect on the environment.

Second, the lawsuit resulted in the proper classification of the bird raising facility as a chicken/turkey ranch under the Placer County Code, which requires a conditional use permit and compliance with state regulations on water quality and confined animal facilities. This portion of the trial courts order was affirmed.

[L]itigation brought to enforce the provisions of CEQA and compliance with planning and zoning laws has been held to involve important rights affecting the public interest, and the private attorney general theory as codified in Code of Civil Procedure section 1021.5 applies to such suits. [Citation.] (San Bernardino Valley Audubon Society, Inc. v. County of San Bernardino (1984) 155 Cal.App.3d 738, 754.) The denial of attorney fees could not properly be based on a finding that the Scilaccis were not successful parties enforcing an important public right.

Significant Benefit Conferred on the Public

or a Large Class of Persons

The Scilaccis claim their lawsuit benefited a large class of persons. They claim it affects all those who live in the vicinity of the project, all people who live downstream, and all residents of Placer County.^[2]

Lakeview Farms contends no significant benefit was conferred on the public or a large class of persons. It argues the insubstantial relief requiring minor modifications to the mitigated negative declaration concerning harvesting lead and the requirement of a conditional use permit for the bird raising facility are mere statutory vindications that do not merit an award of attorney fees. Lakeview Farms relies on Concerned Citizens of La Habra v. City of La Habra, supra, 131 Cal.App.4th 329.

In Concerned Citizens, plaintiffs challenged the Citys approval of proposed construction of a retail warehouse, alleging six causes of action. They were unsuccessful on five, but the court agreed with one alleged CEQA defect in the analysis of cut-through traffic and found the mitigated negative declaration needed revision. (Concerned Citizens, supra, 131 Cal.App.4th at p. 331.) Plaintiffs subsequent motion for attorney fees was denied and they appealed, claiming an abuse of discretion. (Id. at p. 334.) The appellate court found no abuse of discretion in the determination the litigation did not confer a significant benefit on a large class of the public. The court relied on Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 939-940 (Woodland Hills Residents): Of course, the public always has a significant interest in seeing that legal strictures are properly enforced and thus, in a real sense, the public always derives a benefit when illegal private or public conduct is rectified. Both the statutory language (significant benefit) and prior case law, however, indicate that the Legislature did not intend to authorize an award of attorney fees in every case involving a statutory violation. We believe rather that the Legislature contemplated that in adjudicating a motion for attorney fees under section 1021.5, a trial court would determine 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. In Concerned Citizens, the trial court had found the defect in the mitigated negative declaration to be a minute blemish, the correction of which was not likely to change the project. (131 Cal.App.4th at p. 335.)

Here, the defect in the approval process was greater than in Concerned Citizens, supra, 131 Cal.App.4th at page 335, particularly as it affects issues of water quality and toxic substances on protected wetlands. Mindful that the trial court is in the best position to determine whether an award of attorney fees is appropriate and that judgment should not be disturbed unless clearly wrong (Family Planning Specialists Medical Group, Inc. v. Powers (1995) 39 Cal.App.4th 1561, 1567), we would be reluctant to overturn the trial courts decision on this basis alone. The last criteria, however, decidedly supports the trial courts decision, precluding a finding of an abuse of discretion.

Necessity and Burden of Private Enforcement

The final factor affecting the Scilacciss fee request is whether the necessity and financial burden of private enforcement, . . . are such as to make the award appropriate[.] (Code Civ. Proc., 1021.5.) Since the lawsuit was against the governmental entity with authority to approve the project, private, as opposed to public, enforcement was necessary. (Woodland Hills Residents Assn., Inc. v. City Council, supra, 23 Cal.3d 917, 941.)

The key issue is the financial burden. The Scilaccis contend there was no prospect of financial gain, characterizing themselves as simply share[]croppers. Lakeview Farms takes issue with this position, noting that the Scilaccis purchased the Bonnefield farm before the lawsuit was filed. Lakeview Farms contends the Scilacciss interest in protecting the development value of their property was proportionate to, if not in excess of, the costs of the lawsuit.

Lakeview Farms relies on Schwartz v. City of Rosemead (1984) 155 Cal.App.3d 547, in which plaintiff challenged a project including a cogeneration plant proposed for property adjacent to his. After successfully obtaining a writ of mandate ordering the city to conduct an environmental assessment, plaintiff sought attorney fees under section 1021.5. (Id. at p. 552.) The trial court denied fees, finding plaintiff acted to prevent damage and depreciation to his property and the fees he incurred were not out of proportion to his individual stake. (Id. at pp. 553-554.) The appellate court affirmed, finding sufficient evidence to support the trial courts findings. (Id. at p. 559.) The action had been pursued as a private nuisance; plaintiff did not act as the representative of a group or the public. There was evidence the cogeneration plant would diminish the value of plaintiffs property by $100,000 and plaintiff spent $22,000 pursuing the writ. (Id. at p. 560.)

The evidence in this case is less definitive. The Scilaccis proclaim they had no financial motive; they challenged the project before they owned the land and there was no evidence the project would harm the value of their property. There was evidence the Scilaccis purchased the property for $1.8 million at a time when Lakeview Farms offered over $3 million. They received numerous offers from developers to purchase the land; a major developer had options on adjacent properties and regularly contacted the Scilaccis. The Scilaccis had several conversations with government officials about potential development and had the property placed in the sphere of influence for the City of Lincoln. Scilacci conceded that if he continued farming, the Lakeview Farms project would be preferable to housing development, yet he opposed Lakeview Farms but not housing. From this evidence the trial court, with its greater familiarity with development in Placer County, would not abuse its discretion by concluding that spending $115,000 to protect future development of their property did not transcend the Scilacciss personal interest. (Woodland Hills Residents, supra, 23 Cal.3d 917, 941.)

In the reply brief, Richard Ross, the Scilacciss counsel, speaks out and claims he is entitled to an award of attorney fees because he litigated the case without compensation and he does not own the farm. He relies on Lindelli v. Town of San Anselmo (2006) 139 Cal.App.4th 1499, in which an attorney who successfully litigated a case alleging the violation of election laws, moved to intervene to file a motion for attorney fees when the client refused to authorize such a motion. In Flannery v. Prentice (2001) 26 Cal.4th 572, at page 575, the California Supreme Court held that, absent an agreement allocating fee awards, attorney fees awarded under the California Fair Employment and Housing Act belong to the attorneys who labored to earn them. Relying on Flannery, the Lindelli court held the attorney had standing to move for fees and a sufficient interest to intervene in the action. (Lindelli v. Town of San Anselmo, supra, at p. 1502.)

While Lindelli would support Rosss ability to intervene to move for attorney fees if the Scilaccis refused to authorize such a motion, that is not the case here. Nothing in Lindelli suggests that in determining whether the criteria of section 1021.5 are met, it is the financial burden to the attorney that is to be considered. We decline to rewrite section 1021.5 and change the criteria to accommodate Ross. As counsel, Ross was free to withdraw from representing the Scilaccis if they could not pay his fee. (Rules Prof. Conduct, rule 3-700(C)(1)(f).)

Substantial evidence supports a finding that the financial burden of private enforcement was not out of proportion to the Scilacciss personal stake. Since the criteria of section 1021.5 are not met, the trial court did not abuse its discretion in denying the motion for attorney fees.

DISPOSITION

The judgment is affirmed.

MORRISON , J.

We concur:

BLEASE , Acting P.J.

NICHOLSON , J.

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^[1] The Placer County Board of Supervisors joins in and incorporates by reference Lakeview Farms brief on appeal.

^[2] The Scilaccis contend Lakeview Farms does not challenge this factor separately. They are mistaken; Lakeview Farms does.