County of San Diego v. Grossmont-Cuyamaca Comm. College Dist.

Filed 9/13/06 County of San Diego v. Grossmont-Cuyamaca Comm. College Dist. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Linda B. Quinn, Judge. Reversed.

The County of San Diego (the County) filed a petition for writ of mandate under the California Environmental Quality Act (CEQA), challenging defendant Grossmont-Cuyamaca Community College District's (the District's) approval of an expansion plan for its Cuyamaca College campus in Rancho San Diego (the project). The District opposed the petition, claiming that it had no statutory authorization to expend funds to mitigate the adverse off-campus traffic impacts of the expansion project. The court denied the County's petition, granted the District's motion for an award of attorney fees, and ordered the County to pay the District's attorney fees in the amount of $23,023 under Code of Civil Procedure^[1] section 1021.5.^[2]

The County separately appealed both the judgment entered in favor of the District following the court's denial of the County's petition for writ of mandate (D046728), and the order awarding attorney fees to the District (the attorney fees order) (D047627).

In July 2006 this Court, in a published decision (County of San Diego v. Grossmont-Cuyamaca Community College Dist. (2006) 141 Cal.App.4th 86 (Cuyamaca I)) in the related appeal (D046728), reversed the judgment entered in favor of the District on the County's petition.

In the instant appeal from the attorney fees order, the County claims the court abused its discretion in awarding attorney fees to the District because (1) the District did not meet the requirements of section 1021.5, (2) the court's decision is inconsistent with the private attorney general theory and the purpose of section 1021.5; (3) the fee award conflicts with the purpose of CEQA; (4) the District has failed to show that a significant benefit was conferred on the general public; and (5) the District's interest in the project precludes an award of fees because parties who litigate for their own benefit are not entitled to fees under section 1021.5. In its appellant's opening brief, citing National Parks, supra, 81 Cal.App.4th at pages 238-239, the County acknowledged in a footnote that "[t]he fee award must be reversed in the event the Court [of Appeal] reverses the trial court's decision on the writ in the CEQA case, D046728." For reasons we shall explain, we conclude the order awarding fees to the District under section 1021.5 must be reversed.

DISCUSSION

In August 2006 this court directed the parties to submit supplemental letter briefs addressing the impact on the instant appeal of our decision in Cuyamaca I, supra, 141 Cal.App.4th 86, which reversed the judgment entered in favor of the District in this matter. In their letter briefs, both the County and the District stipulate that the attorney fees order at issue here must be reversed.

In National Parks, supra, 81 Cal.App.4th at page 238, this court held that "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. [Citations.]" We explained that "[t]o recover fees under this statute, a claimant must show he or she was successful in the action. [Citations.]" (Ibid., italics omitted.)

Here, as a result of Cuyamaca I, the District cannot show it was successful in this action. Thus, the attorney fees order awarding fees to the District under section 1021.5 must be reversed. (National Parks, supra, 81 Cal.App.4th at p. 238.)

The County, however, urges this court in the exercise of its discretion to "consider and decide the broader issue of whether respondents in CEQA cases are entitled to attorney fees under [] section 1021.5 . . . ." Specifically, the County requests that we resolve the question of "whether respondents in CEQA actions who successfully avoid additional environmental protection or further CEQA review may be awarded attorney fees under section 1021.5." (Italics added.)

In Younger v. Superior Court (1978) 21 Cal.3d 102, 119-120, the California Supreme Court stated, "'The rendering of advisory opinions falls within neither the functions nor the jurisdiction of this court. [Citations.]'" "Even under the most liberal interpretation of 'justiciability' there must be presented something more than a hypothetical question which, when resolved, would not be binding upon the parties, and which either party at its option would be free to reject. [Citations.]" (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 726.)

Here, the County is asking this court to render an advisory opinion on a hypothetical question not presented in this appeal. In light of Cuyamaca I, it cannot be said that the District, as the respondent in the underlying writ proceeding, "successfully avoid[ed] additional environmental protection or further CEQA review." In Cuyamaca I, we remanded this case to the superior court "with directions to issue a peremptory writ (1) vacating the District's certification of the final EIR, its adoption of the CEQA findings and the statement of overriding considerations, and its approval of the master plan; and (2) ordering the District not to take any further action to approve the project without the preparation, circulation and consideration under CEQA of a legally adequate environmental impact report with regard to the off-campus traffic mitigation issues." (Cuyamaca I, supra, 141 Cal.App.4th at pp. 108-109.)

Because the District did not "successfully avoid additional environmental protection or further CEQA review" in this matter, any decision by this court on the question of "whether respondents in CEQA actions who successfully avoid additional environmental protection or further CEQA review may be awarded attorney fees under section 1021.5" would be advisory, and thus we reject the County's request that we issue such an advisory opinion. (Younger v. Superior Court, supra, 21 Cal.3d at pp. 119-120; Wilson v. Transit Authority of the City of Sacramento, supra, 199 Cal.App.2d at p. 726.)

DISPOSITION

The order awarding fees to the Grossmont-Cuyamaca Community College District under Code of Civil Procedure section 1021.5 is reversed. The County shall recover its costs on appeal.

NARES, Acting P. J.

WE CONCUR:

McINTYRE, J.

AARON, J.

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^[1] All further statutory references are to the Code of Civil Procedure.

^[2] "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. [Citations.]" (National Parks and Conservation Assn. v. County of Riverside (2000) 81 Cal.App.4th 234, 238 (National Parks).)