Citizens for Responsible Forst Mgmt. v. Dept. of Forestry

Filed 10/4/06 Citizens for Responsible Forst Mgmt. v. Dept. of Forestry CA6

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

The California Department of Forestry and Fire Protection (CDF) appeals from an order awarding attorney fees to plaintiff Citizens for Responsible Forest Management (CRFM) following remand from this court. CDF contends that the trial court abused its discretion in awarding fees under Code of Civil Procedure section 1021.5 because CRFM had not made a reasonable effort to settle its dispute with CDF before filing the underlying lawsuit. We find no abuse of discretion and therefore must affirm the order.

Background

The facts underlying the present litigation are recounted in a prior appeal, Citizens for Responsible Forest Management v. California Department of Forestry and Fire Protection (H026568, unpub.). In September 2002 CRFM sought a writ of mandate in superior court to compel CDF to rescind its approval of a minor amendment to a 1992 Non-industrial Timber Management Plan (NTMP). According to CRFM, approval of the amendment would have allowed a timberland owner to harvest "snags,"[1] which provided a habitat for wildlife in a protected zone, thereby violating the Z'berg-Nejedly Forest Practice Act and accompanying Forest Practice Rules. (See Pub. Resources Code, §§ 4593.8, 4593.7, 4593.6; Cal. Code Regs., tit. 14, §§ 1090.14, 1090.17, 1090.24.)

CDF answered the petition in December 2002. In mid-January 2003, the timberland owner, Campbell Associates and its individual partners (collectively, Campbell), requested withdrawal of the amendment, and CDF complied. The action now being moot, the parties stipulated to dismissal of the petition, with a reservation of jurisdiction to determine costs and attorney fees.

CRFM moved for attorney fees under the private attorney general doctrine expressed in Code of Civil Procedure section 1021.5. The superior court granted the motion, awarding CRFM $25,000 in attorney fees. The court found that CRFM was the successful party, as the lawsuit had been "the catalyst" to Campbell's withdrawal of the amendment. By bringing the action, the court ruled, CRFM had enforced an important right affecting the public interest and conferred a significant benefit on the general public.

During the pendency of CDF's appeal in H026568, the Supreme Court issued its opinion in Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553 (Graham). In Graham, the Court affirmed the continued viability of the catalyst theory in California but clarified the prerequisites for using the theory to recover attorney fees in public interest litigation when the dispute has been resolved without a judgment. The key to such recovery, the court held, was the practical impact of the action, not the manner of its relief. (Id. at p. 568.) Accordingly, in addition to the statutory criteria[2] for recovery of "private attorney general" fees, a trial court reviewing a fee request on a catalyst theory should meaningfully review the merits of the lawsuit and determine whether the plaintiff made a reasonable attempt to settle the matter short of litigation. (Id. at p. 577.)

Although CRFM had met the requirements of section 1021.5, the trial court had not ruled with the benefit of the Graham decision. Consequently, we remanded H026568 for a determination of whether CRFM had satisfied the two-pronged test set forth in Graham: (1) that "the lawsuit is not 'frivolous, unreasonable or groundless' [citation], in other words that its result was achieved 'by threat of victory, not by dint of nuisance and threat of expense' " (Graham, supra, 34 Cal.4th at p. 575) and (2) whether the plaintiff reasonably attempted to settle the matter before bringing suit. (Id. at pp. 576-577.)

After remand, the superior court received written and oral argument on these two questions, along with declarations from CRFM's executive director, Jodi Frediani, and Mark Allaback, a wildlife biologist. The court then ruled in CRFM's favor, finding the action "not frivolous, unreasonable, or groundless." On the issue of pre-litigation settlement efforts, the court found that CRFM had "notified CDF of its grievances and proposed remedies and gave CDF an opportunity to meet its demands within a reasonable time." It is this latter determination that CDF challenges in the present appeal.

Discussion

Before we consider the issue raised by CDF, we briefly address a contention raised by CRFM: that Graham should not be applied retroactively. CRFM argues that it would be unfair to require a showing of reasonable settlement efforts because it relied on pre-Graham law. As we noted in H026568, however, the Supreme Court elected not to make its holding prospective only; on the contrary, it remanded for a determination of whether the two prongs of the test had been satisfied. Accordingly, in H026568 we remanded this case for the very determination now at issue, rejecting CRFM's protest that Graham should not be applied retroactively. The applicability of Graham to the facts before us not only is supported by the Graham decision itself, but is law of the case. In any event, as both the majority and the dissent noted in Graham, the settlement-effort requirement is not new. (See Grimsley v. Board of Supervisors (1985) 169 Cal.App.3d 960, 966 [before commencing action as private attorney general, plaintiff must first try to avoid litigation by advising responsible governmental body of the shortcoming of its plan].)[3]

The parties agree that the trial court's ruling is reviewed for abuse of discretion. (Graham, supra, 34 Cal.4th at p. 578.) " 'When the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts [that] merely afford an opportunity for a difference of opinion. An appellate tribunal is not authorized to substitute its judgment for that of the trial judge. [Citation.] A trial court's exercise of discretion will not be disturbed unless it appears that the resulting injury is sufficiently grave to manifest a miscarriage of justice. [Citation.] In other words, discretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered.' [Citation.]" (In re Woodham (2001) 95 Cal.App.4th 438, 443; Denham v. Superior Court (1970) 2 Cal.3d 557, 566; Wal-Mart Real Estate Business Trust v. City Council of City of San Marcos (2005) 132 Cal.App.4th 614, 625.)

Measured by these settled principles, the challenged ruling did not constitute an abuse of discretion. To meet the settlement-effort requirement, "[l]engthy prelitigation negotiations are not required, nor is it necessary that the settlement demand be made by counsel, but a plaintiff must at least notify the defendant of its grievances and proposed remedies and give the defendant the opportunity to meet its demands within a reasonable time." (Graham, supra, 34 Cal.4th at p. 577.) Graham does not require an attempt to resolve the dispute to be made directly by the plaintiff or expressly as an agent of the plaintiff. Here Kent Aue, a representative from the Department of Fish and Game (DFG), and Mark Allaback, the wildlife biologist, both conveyed to CDF concerns that they shared with CRFM, and both experts recommended that CDF treat the proposed change as a major amendment requiring agency and public review. In doing so, both acted at the request of Frediani to investigate the illegal snag harvesting and proposed amendment and to persuade CDF to process it as a major amendment. Although Allaback's efforts were directed primarily to DFG with only a copy to CDF and without mentioning CRFM, his declaration stated that he was acting on CRFM's behalf. After independently evaluating the situation, DFG staff agreed with CRFM that CDF's plan to process the amendment as a minor one was inappropriate, as it would permit a "substantial deviation" from the existing NTMP with attendant adverse consequences for wildlife in the affected zone.[4] Although there is no indication that DFG informed CDF that it was speaking on CRFM's behalf, Aue represented to Frediani that DFG's investigation and communications to CDF were the result of the "notification and information provided by CRFM."

1 Thus, as a result of CRFM's communications with Allaback and DFG, CDF was alerted to the problem and a proposed remedy was presented. The trial court did not act irrationally or arbitrarily in finding that CRFM made a reasonable effort to resolve the matter short of litigation by enlisting the assistance of Allaback and DFG staff.

Disposition

The order is affirmed.

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ELIA, J.

WE CONCUR:

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RUSHING, P. J.

_____________________________

PREMO, J.

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[1] As we noted in H026568, snags are standing dead trees or standing sections of dead trees.

[2] Code of Civil Procedure section 1021.5 permits an award of attorney fees to a "successful party" in an action that "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."

[3] In a further effort to escape the settlement-effort requirement, CRFM contends that "this case is not, after all, governed by catalyst principles." Having actively litigated the catalyst issue below and in H026568, CRFM clearly has waived the argument it raises for the first time in its respondent's brief. We need not dwell on the matter in any event, as it does not alter the conclusion we reach regarding CDF's contentions on appeal.

[4] Public Resources Code section 4593.8 states that a nonindustrial tree farmer "may submit a proposed amendment to the approved plan and may not take any action which substantially deviates, as defined by the board, from the approved plan until the amendment has been filed with the director and the director has determined that the amendment is in compliance with the rules and regulations of the board and the provisions of this chapter which were in effect at the time the nonindustrial timber management plan was approved, in accordance with the same procedures specified in Section 4593.7." "Substantial deviations" are those that could have a significant adverse effect on, among other things, wildlife. (Cal. Code Regs. tit. 14, §§ 895.1, 1090.14.)