County of San Diego v. Vista Unif. School Dist.

Filed 4/18/06 County of San Diego v. Vista Unif. School Dist. CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Lisa Guy-Schall, Judge. Reversed.

Vista Unified School District (VUSD) certified an Environmental Impact Report (EIR) and approved a project to build two new magnet high schools in the City of Oceanside (the Project). Several parties filed superior court actions challenging VUSD's approval of the Project, including the City of Oceanside (City) and County of San Diego (County). City and County alleged a challenge under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.), and City separately alleged claims under Education Code section 17217 and Government Code section 53094. The trial court entered judgment in favor of VUSD on all claims, and subsequently ordered City and County to pay VUSD's attorney fees pursuant to Code of Civil Procedure section 1021.5 (section 1021.5).

In this appeal, City contends VUSD may not recover attorney fees, arguing section 1021.5 allows a prevailing plaintiff public entity in the underlying action to recover section 1021.5 fees from a defendant public entity but bars a prevailing defendant public entity in the underlying action from recovering attorney fees against a plaintiff public entity. City and County also argue that, even if section 1021.5 permits a defendant public entity to recover attorney fees from a plaintiff public entity, the trial court abused its discretion by concluding the prerequisites to a section 1021.5 fee award were satisfied and in setting the amount of the fee award. VUSD contends section 1021.5 provides a reciprocal remedy and permits a prevailing public entity, whether a plaintiff or defendant, to recover fees from an opposing public entity, and the other prerequisites of a section 1021.5 fee award have been met in this case.

In a companion appeal, County of San Diego v. Vista Unified School District (Apr. 14, 2006) D045588 (nonpub. opn.), of which we take judicial notice, City and County challenged the underlying judgment. In the companion appeal, we concluded that although City and County's challenges to the certification of the EIR were properly rejected, two of the findings made by VUSD when it approved the Project were without substantial evidentiary support. Accordingly, we directed the trial court to issue a writ of mandate requiring VUSD to vacate two of its findings, and we identified the actions VUSD must take to comply with CEQA. (Pub. Resources Code, § 21168.9, subd. (a).) We also vacated the trial court's judgment insofar as it denied as moot City's Education Code section 17217 claim. (County of San Diego v. Vista Unified School District, supra, D045588 at pp. 45-46.) Because we have reversed the trial court's judgment in the underlying action, the attorney fee award challenged in this appeal necessarily must be vacated.^[1] (National Parks & Conservation Assn. v. City of Riverside (2000) 81 Cal.App.4th 234, 238; City of Sacramento v. State Water Resources Control Bd. (1992) 2 Cal.App.4th 960, 978-979.) Any award of section 1021.5 attorney fees in this case requires the trial court to determine the applicability of section 1021.5 to public entities, the identity of the successful party (Nestande v. Watson (2003) 111 Cal.App.4th 232, 238), and to make the pragmatic assessment of the surrounding circumstances and the gains achieved by the respective parties (Protect Our Water v. County of Merced (2005) 130 Cal.App.4th 488, 493; compare Concerned Citizens of La Habra v. City of La Habra (2005) 131 Cal.App.4th 329, 335 and Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173, 177-179), as well as the amount of any attorney fee award.

Section 1021.5 codifies the private attorney general doctrine. (Jobe v. City of Orange (2001) 88 Cal.App.4th 412, 416.) Prior to 1993, public entities were barred from an award of attorney fees under that section (See, e.g., People ex rel. Cooper v. Mitchell Brothers' Santa Ana Theater (1985) 165 Cal.App.3d 378, 385-386), although the public entity could be liable to a private party for attorney fees if the private party prevailed in the lawsuit against the public entity and otherwise satisfied the elements of the statute.

In 1993, the Legislature amended section 1021.5 (See Stats. 1993, ch. 645, § 2) and, as amended, it now provides:

"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. With respect to actions involving public entities, this section applies to allowances against, but not in favor of, public entities, and no claim shall be required to be filed therefor, unless one or more successful parties and one or more opposing parties are public entities, in which case no claim shall be required to be filed therefor under Part 3 (commencing with Section 900) of Division 3.6 of Title 1 of the Government Code. [¶] Attorneys' fees awarded to a public entity pursuant to this section shall not be increased or decreased by a multiplier based upon extrinsic circumstances, as discussed in Serrano v. Priest, 20 Cal.3d 25, 49."

In the context of this case an award of attorney fees under section 1021.5 presents several perplexing issues on which it is premature for this court to express an opinion. However, to award attorney fees the trial court must determine: whether there is a successful party, considering that each party was successful on some, but not all, of its claims; whether a successful public entity is entitled to attorney fees under section 1021.5; whether an important public interest right involving a significant benefit has been conferred on the general public or large class of persons, considering the issue was limited to the location of a single school in a single school district; and the reasonable amount of attorney fees. The text of section 1021.5 does not clearly answer these questions.

DISPOSITION

The award of attorney fees is vacated. Each party shall bear its own costs on appeal.

McDONALD, Acting P. J.

I CONCUR:

IRION, J.

McINTYRE, J., Concurring.

I concur in the conclusion of the majority opinion; however, I would add some additional observations. First, in all fairness to the trial court, the parties did not raise the statutory interpretation issue below and the trial court did not consider it. However, even assuming, without deciding, that Vista Unified School District (VUSD) was the successful party in this litigation and the language of Code of Civil Procedure section 1021.5 (all statutory references are to this code) allows a public entity defendant to obtain attorney fees, such fees can only be awarded if the litigation (1) enforced an important public right; (2) conferred a significant benefit on the general public or a large class of persons; and (3) imposed a financial burden on the litigant which was out of proportion to its individual stake in the matter. (§ 1021.5; Families Unafraid to Uphold Rural El Dorado County v. Board of Supervisors (2000) 79 Cal.App.4th 505, 511 (Families Unafraid).)

Section 1021.5 codifies the private attorney general doctrine and creates a limited exception to the general rule that parties to litigation must bear the cost of their own attorney fees. (§ 1021.) The private attorney general 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." (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 933.) Stated differently, "[s]ection 1021.5 was not designed as a method for rewarding litigants motivated by their own pecuniary interests who only coincidentally protect the public interest. [Citations.]" (Beach Colony II v. California Coastal Com. (1985) 166 Cal.App.3d 106, 114.)

Here, VUSD sought fees under section 1021.5 on the ground its success paved the way for new high schools, thus conferring a benefit on the general public and the children within the school district by eliminating school overcrowding. VUSD also argued that its successful defense of the action affirmed its important right to select school sites based on need and that the City of Oceanside (City) and County of San Diego (County) "blatant[ly] abused" the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) process and sought to "veto" its selection of a public school site. The trial court accepted VUSD's general arguments without specifically addressing each element.

VUSD acknowledges that the underlying litigation involved competing public interests: the environmental impacts of a proposed school on the community versus the need to alleviate school overcrowding. Thus, all parties participated in this litigation to address important rights of their constituents. VUSD has not shown, however, that its defense of this action "enforced" important CEQA rights. In fact, the companion appeal concluded that VUSD violated CEQA insofar as it approved the project without substantial evidence to support its findings that the project's significant effects on safety and on congestion at the SR-76/Melrose intersection would be mitigated by adoption of the specified mitigation measures and vacated approval of the project. Although a party need not prevail on all issues to be considered successful in the litigation (Wallace v. Consumers Cooperative of Berkeley, Inc. (1985) 170 Cal.App.3d 836, 846), success alone is insufficient for an award of section 1021.5 attorney fees. Additionally, VUSD's argument that the City and County abused the CEQA process does not add to the analysis as the subjective intent of a litigant is irrelevant. (Punsley v. Ho (2003) 105 Cal.App.4th 102, 114.) Furthermore, in our reversal of the companion appeal we vindicated, in part, the position of the City and County.

Nor has VUSD shown how it conferred a significant benefit on the general public or a large class of persons. "[T]he litigation for which fees are claimed must transcend one's interests, whether pecuniary or not. [Citations.]" (Hammond v. Agran (2002) 99 Cal.App.4th 115, 127, italics added.) Assuming VUSD completes the necessary actions to comply with CEQA as set forth in the companion appeal and the project is ultimately approved, the primary effect of the project approval is limited to VUSD and its constituents. VUSD has not shown how its defense of the action addressed an important CEQA issue that transcended its personal stake in the litigation and inured to the benefit of the general public. (City of Hawaiian Gardens v. City of Long Beach (1998) 61 Cal.App.4th 1100, 1113 [section 1021.5 fees to prevailing public entity plaintiff denied where there is no showing that the burden of the litigation transcended plaintiff's interest in the controversy].) Finally, while defending the litigation undoubtedly placed a financial burden on VUSD, this burden must be out of proportion to its individual stake in the matter. (Families Unafraid, supra, 79 Cal.App.4th at p. 511.) There has been no such showing here, thus the record below does not support the trial court's award of section 1021.5 fees in this case.

McINTYRE, J.

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^[1] City's request for judicial notice, filed August 5, 2005, is denied as moot.