Deltakeepr v. S. San Joaquin Irrigation Dist.

Filed 10/30/06 Deltakeepr v. S. San Joaquin Irrigation Dist. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Sacramento)

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South San Joaquin Irrigation District and its Board of Directors (SSJID) appeal from an order awarding attorney’s fees (Code Civ. Proc., § 1021.5^[1]) to Deltakeeper, San Joaquin Raptor Rescue Center, Protect Our Water, and the Central Valley Safe Environmental Network (collectively Deltakeeper), after Deltakeeper prevailed in a petition for a writ of mandate seeking to invalidate SSJID’s adoption of a negative declaration and in effect to require SSJID to prepare an environmental impact report (EIR) in order to comply with the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.). We affirmed the judgment on the petition in a separate nonpublished opinion, Deltakeeper v. Oakdale Irrigation District, et al., case No. C049798, filed August 31, 2006 (No. C049798), which consolidated SSJID’s appeal with similar appeals concerning other irrigation districts.^[2] We now affirm the order awarding attorney’s fees against SSJID.

FACTUAL AND PROCEDURAL BACKGROUND

In the underlying case, Deltakeeper filed a petition for a writ of mandate in the trial court, alleging SSJID violated CEQA by adopting a negative declaration instead of preparing an EIR for its program applying aquatic herbicides/pesticides to keep irrigation canals clear of weeds and algae. Application of CEQA to this long-standing program was newly triggered by permit requirements of the State Water Resources Control Board (SWRCB) to satisfy federal law (National Pollution Discharge Elimination System (NPDES) permits under the Clean Water Act, 33 U.S.C. § 1251 et seq.). Deltakeeper asserted a variety of defects requiring preparation of an EIR.

The trial court found SSJID abused its discretion in adopting the negative declaration because substantial evidence supported a fair argument that the program may have a significant impact on groundwater due to leaching of the chemical, acrolein. SSJID appealed. Deltakeeper cross-appealed, complaining the trial court failed to address or erroneously ruled on other potential impacts asserted by Deltakeeper.

In our nonpublished opinion in case No. C049798, we affirmed the judgment. We addressed the cross-appeal but found it unnecessary to decide the merits, partly because the cross-appeal turned on evidentiary issues, and the evidence may differ in the subsequent CEQA review process.

After the trial court issued its judgment on the merits, Deltakeeper filed in the trial court a motion for attorney’s fees under section 1021.5 (fn. 1, ante). The motion sought a total of $99,861.85, comprised of (1) a “lodestar” of $65,183.33; (2) a 1.5 “multiplier” of $32,591.66; and (3) expenses of $2,086.86. Deltakeeper also sought attorney’s fees incurred in litigating the motion for attorney’s fees.

SSJID opposed the motion, but stipulated that (1) the hourly rates requested were reasonable; (2) Deltakeeper had no financial stake in the outcome of the litigation and its interest in the litigation was not motivated by financial concerns; and (3) the total amount of fees actually incurred was the amount set forth in Deltakeeper’s motion.

After a hearing, the trial court on November 17, 2005, issued an order awarding Deltakeeper $123,808.01, for the reasons set forth in a tentative ruling incorporated by reference into the court order. The tentative ruling stated in part: “Motion for attorneys fees is granted as requested. The action resulted in the enforcement of an important right affecting the public interest. The petitioners did succeed in conferring a significant benefit on a large class of persons. They were successful in obtaining a writ ordering respondent to prepare an EIR, which is the relief that they sought. The necessity and financial burden of enforcing this public right is such as to make an award of attorneys fees appropriate.” The trial court further stated the hours and hourly rate were reasonable and necessarily incurred. The court applied a multiplier of 1.5, stating Deltakeeper’s counsel “incurred the risk of taking the matter on a contingent basis. Further, this case greatly reduced the amount of time they could devote to other matters.” The court also awarded fees for expenses and for attorney’s fees to litigate the motion for fees, but did not apply a multiplier to these latter fees because Deltakeeper did not so request. The total awarded by the trial court was $123,808.01.

SSJID appeals.

DISCUSSION

I. Governing Principles and Standard of Review

Section 1021.5 codifies the “private attorney general” doctrine for awarding attorney’s fees. This 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’s fees, private actions to enforce such important public policies will as a practical matter frequently be infeasible. (Families Unafraid To Uphold Rural El Dorado County v. Board of Supervisors (2000) 79 Cal.App.4th 505, 511 (Families).) Where, as here, a plaintiff’s action has not produced a monetary recovery, an award of attorney’s fees is proper under section 1021.5 if (1) the action has resulted in enforcement of an important right affecting the public interest, (2) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, and (3) the necessity and financial burden of private enforcement makes the award appropriate. (Ibid.)

A trial court’s determination that the elements were met may not be disturbed on appeal absent a showing that the court abused its discretion in awarding attorney’s fees, i.e., the record establishes there is no reasonable basis for the award. (Families, supra, 79 Cal.App.4th at pp. 511-512.) In reviewing the trial court’s decision, we pay particular attention to the trial court’s stated reasons in denying or awarding fees and determine whether it applied the proper standards of law in reaching its decision. (Id. at p. 512.) The pertinent question is whether the grounds given by the court are consistent with the substantive law of section 1021.5 and, if so, whether their application to the facts of the case is within the range of discretion conferred upon the trial courts under section 1021.5, read in light of the purposes and policy of the statute. (Ibid.)

II. Award of Attorney’s Fees Was Proper

SSJID claims the award must be reversed because the trial court found only one of the three elements necessary to an award. We disagree.

As indicated, the elements are (1) the action has resulted in enforcement of an important right affecting the public interest, (2) a significant benefit has been conferred on the general public or a large class of persons, and (3) the necessity and financial burden of private enforcement makes the award appropriate. (Families, supra, 79 Cal.App.4th at pp. 511-512.)

The trial court found all elements were met. The court stated, “The action resulted in the enforcement of an important right affecting the public interest. The petitioners did succeed in conferring a significant benefit on a large class of persons. They were successful in obtaining a writ ordering respondent to prepare an EIR, which is the relief that they sought. The necessity and financial burden of enforcing this public right is such as to make an award of attorneys fees appropriate.”

The record clearly supports the award. SSJID stipulated Deltakeeper had no financial stake in the litigation, and Deltakeeper’s counsel submitted a declaration (ignored by SSJID on appeal) describing the financial burden and other circumstances supporting an award. The specific defect identified by the court related to inadequate discussion of potential impacts on groundwater, which clearly is an important resource that, by its nature, has the potential to affect a great many people who rely on it for drinking water and irrigation. As a result of Deltakeeper’s litigation, SSJID cannot proceed with application of pesticides to irrigation canals serving thousands of acres of land without first preparing an EIR, which necessarily allows public participation in the EIR process. (As stated in our opinion in case No. C049798, SSJID suggests subsequent changes in SWRCB’s general permit may now render CEQA review unnecessary. Nevertheless, our review of the attorney’s fees award looks to the judgment resulting from the litigation, not subsequent events unrelated to the litigation.)

SSJID claims the trial court’s ruling was insufficient because the ruling did not explain what the public right or benefit was, and therefore the court failed to make the findings that are a necessary predicate to a fee award under section 1021.5. However, SSJID cites no authority requiring the trial court expressly to state the evidence supporting its findings. SSJID merely cites Families, supra, 79 Cal.App.4th at page 512, where we said the reviewing court pays particular attention to the trial court’s stated reasons in denying or awarding fees. Generally, even in cases where a statement of decision is required under section 632 (which Deltakeeper has not shown to be the case here), the trial court need only state ultimate facts, not evidentiary facts. (In re Marriage of Burkle (2006) 139 Cal.App.4th 712, 736, fn. 15.)

SSJID argues the trial court’s ruling, by finding only that Deltakeeper obtained the relief it sought, suggests that the mere determination of a statutory violation is, standing alone, sufficient to be considered a substantial benefit. However, this argument is based on SSJID’s mistaken notion that the trial court was required to state evidentiary facts. SSJID argues the mere finding of a statutory violation under CEQA cannot constitute the “significant benefit” contemplated by section 1021.5. SSJID argues that upholding the fee award in this case would mean that a fee award is automatic when any kind of CEQA violation is found. However, while the finding of a statutory violation will not necessarily constitute a significant public benefit, it may do so. We agree with Deltakeeper that, by demonstrating a fair argument that the project may have a significant impact on groundwater, Deltakeeper forced further review with opportunity for public participation, which conferred a significant public benefit regardless of whether or not the subsequent review shows an actual impact on groundwater.

SSJID cites various inapposite cases. Thus, SSJID cites Concerned Citizens of La Habra v. City of La Habra (2005) 131 Cal.App.4th 329, which stated, “enforcement efforts alone do not justify an attorney fee award; the benefit gained must be significant and widespread.” (Id. at p. 336.) There, however, the trial court determined the citizens’ group challenging a mitigated negative declaration had shown only a “minute blemish” that “probably c[ould] be repaired” without necessity for preparation of an EIR. (Id. at p. 333.) Here, the trial court determined the negative declaration was invalid and an EIR should have been prepared.

SSJID next cites Protect Our Water v. County of Merced (2005) 130 Cal.App.4th 488 (POW), where environmental groups in the underlying action sought an order setting aside the county’s approval of a project. The trial court initially denied the petition. The Fifth Appellate District reversed, finding the administrative record was inadequate (a ground which was not the “core” of the groups’ contentions). (Id. at pp. 492, 495.) On remand, the trial court directed the county to set aside its approval but denied attorney’s fees to the groups on the ground they were not “successful” within the meaning of section 1021.5. The Court of Appeal reversed the denial of attorney’s fees. The groups obtained the relief they sought -- the setting aside of the project approval. Although the prior appellate opinion did not reach the merits, the finding of the administrative record’s inadequacy was tantamount to a determination that the project certification could not stand. In discussing the public impact, the appellate court emphasized the importance of complete recordkeeping during the environmental review process. (Id. at pp. 494-497.)

SSJID says POW, supra, 130 Cal.App.4th at page 495, made clear it was awarding fees not merely because of the statutory vindication, but rather because the result of the litigation conferred a significant benefit on the public by announcing in a published opinion that complete recordkeeping during the CEQA process was critical. However, we see nothing in the cited page of POW stating the court was awarding fees not “merely because of the statutory vindication,” as asserted in SSJID’s brief, nor do we see anything in POW holding that statutory vindication cannot support a section 1021.5 award.

SSJID argues there is no substantial evidence supporting a finding of significant public benefit, because no evidence was adduced that the trial court’s order, if upheld, would actually protect groundwater quality. SSJID argues that if we uphold the judgment, and if a subsequent EIR shows the project will have a significant impact on groundwater, then Deltakeeper will have conferred a significant benefit -- “but not before then.” We disagree. CEQA protects not only the environment but also public participation in an informed self-government. (Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1123.) The trial court in effect commanded that SSJID not re-approve the same project without preparing an EIR, which will necessarily allow public participation. This effectuated an important statutory policy and conferred a significant public benefit.

SSJID’s reply brief claims two cases cited in its opening brief denied attorney’s fees “precisely because” the ultimate conclusion was no different from the agency’s original determination that there would be no significant impacts. Neither case supports SSJID’s position.

Thus, in Terminal Plaza Corp. v. City and County of San Francisco (1986) 177 Cal.App.3d 892 (Terminal Plaza), a property owner, who was affected by a new ordinance restricting conversion of residential hotels to tourist hotels or condominiums, challenged the ordinance on the grounds it was adopted without proper planning commission review, in violation of the city charter, and without proper environmental review under CEQA. The trial court declared the ordinance invalid on both grounds. The appellate court reversed as to the city charter but affirmed as to the CEQA issue. After trial, while the appeal was pending, the Board reenacted the ordinance following a planning commission hearing and issuance of a negative declaration under CEQA. In rejecting the property owner’s claim for section 1021.5 attorney’s fees, the appellate court said, “The sole result of Terminal’s suit has been to force the City to undertake a threshold environmental evaluation of the effect of the ordinance. [Fn. omitted.] The benefit conferred thereby upon the public was minimal, however, since a negative declaration was issued after the evaluation. And we have little doubt that Terminal’s primary purpose in bringing suit was to pursue and protect its own property rights rather than to further a significant public interest.” (Id. at pp. 913-914.)

Nothing in Terminal Plaza, supra, 177 Cal.App.3d 892, requires that a section 1021.5 motion be deferred until completion of postjudgment CEQA review (which has not yet taken place in this case). Moreover, Terminal Plaza is inapposite because, in contrast to that case, here Deltakeeper and its co-petitioners are non-profit environmental organizations seeking to enforce CEQA for the public benefit, and SSJID stipulated that these environmental organizations were not motivated by financial concerns and had no financial stake in the litigation. Moreover, the effect of the judgment in this case would not be a mere “threshold” environmental evaluation, but preparation of an EIR by SSJID.

SSJID also cites Christward Ministry v. County of San Diego (1993) 13 Cal.App.4th 31, where the trial court required the county to revise the water impacts section of an EIR and add information to the mitigation monitoring program, but then denied attorney’s fees. There, however, the trial court denied attorney’s fees because Christward’s private property interests were the real basis for the action. (Id. at p. 49.) The appellate court affirmed the trial court’s denial of fees on this ground and added (1) it was reasonable to conclude Christward’s success regarding water impacts did not itself confer a public benefit because, before the hearing, the County was already under notice from the regional water quality control board that it must prepare a more detailed analysis of water impacts, and (2) it was reasonable to view the judgment’s requirement that the responsible enforcement agent be identified as insignificant within the meaning of the private attorney general statute. (Id. at p. 50.)

Here, there is no indication of a private purpose in bringing suit, and any subsequent CEQA review will happen as a result of this lawsuit.

We conclude the trial court did not abuse its discretion in determining Deltakeeper, San Joaquin Raptor, Protect Our Water, and Central Valley Safe Environmental Network, were entitled to recover attorney’s fees under section 1021.5.

III. Amount

SSJID argues that, even if the fee award is allowed, it must be substantially reduced to reflect Deltakeeper’s limited success on the merits. We shall reject SSJID’s argument, which is based on a misstatement of the record, a misstatement of the trial court’s ruling, an overstatement of the law, and a failure to show abuse of discretion by the trial court.

SSJID claims Deltakeeper prevailed only on one small matter (potential impact on groundwater) which, according to SSJID, took up only one line of Deltakeeper’s 23-page trial brief in the underlying case, No. C049798. Thus, SSJID’s opening brief says, “out of the 23 pages that comprised petitioners’ opening brief on the merits in the trial court, all of one line was devoted to the ‘successful’ issue.” SSJID’s reply brief says “just one sentence was devoted to the lone successful claim.” However, SSJID misstates the record. The “one line” cited by SSJID is actually a subheading in the trial brief, followed by three paragraphs of discussion.

SSJID also misstates the trial court’s ruling by claiming that Deltakeeper “lost” on every other claimed defect it alleged, and that the trial court “upheld every one of SSJID’s findings that no significant impacts could result from the program, except for one finding and one finding only: the finding that no significant impact to groundwater would result from canal seepage.” SSJID says that, to comply with the judgment, SSJID is not required to reexamine the insignificant impacts that the court held were adequately evaluated in the initial study.

However, SSJID misstates the trial court’s ruling and fails to show SSJID can prepare a partial EIR limited to the topic of groundwater. The trial court did not rule in favor of SSJID on all other defects alleged by Deltakeeper. Rather, the trial court failed to rule on some of the alleged defects. The court’s failure to rule on some claims was assigned as error in Deltakeeper’s cross-appeal from the judgment, but we concluded it was unnecessary to reach the merits of those claims on the cross-appeal in our opinion in case No. C049798.

The only express findings made by the trial court in favor of SSJID were: (1) The initial study accurately described the project setting; (2) the evidence of fish in canals and reservoirs concerned districts other than SSJID; and (3) SSJID’s “Best Management Practices” did not need to be set out as mitigation measures in a mitigated negative declaration. In our opinion in case No. C049798, we addressed the cross-appeal but concluded it was not necessary for us to decide the merits of these matters. We noted some of these issues were evidentiary matters and the state of the evidence may be different in any subsequent CEQA review.

Thus, SSJID fails to show it prevailed on the bulk of the case.

SSJID cites Public Resources Code section 21002.1, subdivision (e), which says, “In order to achieve the objectives set forth in Section 21002, the Legislature hereby finds and declares that the following policy shall apply to the use of [EIRs] prepared pursuant to this division: . . . (e) To provide more meaningful public disclosure, reduce the time and cost required to prepare an [EIR], and focus on potentially significant effects on the environment of a proposed project, lead agencies shall, in accordance with Section 21100,^[[3]] focus the discussion in the [EIR] on those potential effects on the environment of a proposed project which the lead agency has determined are or may be significant. Lead agencies may limit discussion on other effects to a brief explanation as to why those effects are not potentially significant.”

SSJID also cites CEQA Guidelines (Cal. Code Regs., tit. 14) section 15063(c)(3)(A), which states with respect to initial studies: “(c) Purposes. The purposes of an initial study are to: . . . (3) Assist the preparation of an EIR, if one is required, by: (A) Focusing the EIR on the effects determined to be significant . . . .”

However, SSJID cites no authority interpreting these provisions as allowing SSJID to prepare a partial EIR addressing groundwater only and relying on the trial court’s judgment in this case as a reason for not discussing other effects. We do not know what evidence or public comments may be presented during the EIR process. The case cited by SSJID --Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099 -- is inapposite because there the water agency did prepare an EIR, the EIR was the subject of the litigation, the trial court found the agency had complied with CEQA, and on appeal we determined the EIR was defective in only one respect. (Id. at pp. 1105, 1112.) Under those circumstances, the agency was not required “to start the EIR process anew. Rather, the Agency need only correct the deficiency in the EIR . . . before considering recertification of the EIR.” (Id. at p. 1112.) Here, SSJID has not yet prepared any EIR.

From SSJID’s discussion of case law, it appears SSJID assumes that limited success of the litigation requires a reduction in the section 1021.5 award based on the degree of success obtained. However, a reduced fee award under section 1021.5 is “appropriate,” but not mandated, when a claimant achieves only limited success. (Laurel Heights Improvement Assn. v. Regents of University of California (1989) 47 Cal.3d 376, 428, fn. 29 [directed trial court upon remand to “consider” fact that one claim was unsuccessful]; Sokolow v. County of San Mateo (1989) 213 Cal.App.3d 231, 249.) It is a matter for the trial court’s consideration and discretion. (Ibid.)

Here, SSJID fails to show the trial court did not consider the limited success of the litigation and fails to show the trial court abused its discretion. SSJID merely assumes the trial court did not consider the matter because the court did not expressly discuss it in the ruling. However, in the absence of any indication to the contrary, we presume the trial court properly performed its duty. (Evid. Code, § 664.) The record shows this matter was put in issue by the section 1021.5 motion itself, where Deltakeeper’s attorney attested, “I have reviewed the time records for this matter in an effort to determine whether the fees requested are reasonable in view of the fact that Deltakeeper did not prevail on all of the issues that it briefed in this action.” The attorney went on to explain her position as to why the award should be reduced (points that we need not address because they are not addressed by SSJID on appeal). SSJID’s opposition papers in the trial court argued any fee award should be reduced due to the limited success of the lawsuit. Thus, the matter was at issue in the trial court, which found the fees sought were reasonable and necessarily incurred.

SSJID fails to show abuse of discretion by the trial court in declining to reduce the award due to the limited success of the lawsuit.

Although SSJID’s opening brief on appeal says Deltakeeper was not entitled to the fee award “or the multiplier the superior court granted,” SSJID’s opening brief fails to develop any analysis and fails to cite any legal authority concerning multipliers. We agree with Deltakeeper that SSJID has accordingly forfeited any contention concerning the multiplier. (In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 672-673, fn. 3.) We therefore need not address Deltakeeper’s precautionary discussion of this issue.

We conclude SSJID fails to show any ground for reversal with respect to the amount of the attorney’s fees award.

IV. Attorney’s Fees for the Appeal

Deltakeeper requests that we remand to the trial court to determine what additional fees should be awarded for this appeal. Fees recoverable under section 1021.5 include fees for time spent establishing and defending the fee claim, including appeal. (Serrano v. Unruh (1982) 32 Cal.3d 621, 637-639.) We remand to the trial court to determine the amount.

In addition, Deltakeeper is entitled to attorney’s fees for services rendered in successfully defending against the appeal from the underlying judgment (No. C049798). (Serrano v. Unruh, supra, 32 Cal.3d at p. 637 [“fees, if recoverable at all--pursuant either to statute or parties’ agreement--are available for services at trial and on appeal”].) We remand to the trial court to determine the amount.

DISPOSITION

The November 17, 2005, order awarding attorney’s fees against SSJID and in favor of Deltakeeper, San Joaquin Raptor Rescue Center, Protect Our Water, and the Central Valley Safe Environmental Network, is affirmed. Deltakeeper, San Joaquin Raptor Rescue Center, Protect Our Water, and the Central Valley Safe Environmental Network, shall recover their costs on this appeal. (Cal. Rules of Court, rule 27(a)(1).) The matter is remanded to the trial court for a determination, under Code of Civil Procedure section 1021.5, of the amount of appellate attorney’s fees to be awarded for this appeal and the appeal from the underlying judgment (Deltakeeper v. Oakdale Irrigation Dist. et al. (Aug. 31, 2006 [nonpub. opn.] C049798).

SIMS , J.

We concur:

SCOTLAND , P.J.

BLEASE , J.

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^[1] Undesignated section references are to the Code of Civil Procedure. Section 1021.5 provides in part: “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 . . . 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 allowance against, but not in favor of, public entities, and no claim shall be required to be filed therefore . . . .” (§ 1021.5.)

^[2] Both sides in this appeal refer to the record in the underlying appeal. We take judicial notice of the record in the underlying appeal, No. C049798. (Evid. Code, § 452.)

^[3] Public Resources Code section 21100 states in part that “[a]ll lead agencies shall prepare . . . [an EIR] on any project . . . that may have a significant effect on the environment. . . . (b) The [EIR] shall include a detailed statement setting forth . . . [significant effects, mitigation measures, alternatives to the proposed project, etc.]. (c) The report shall also contain a statement briefly indicating the reasons for determining that various effects on the environment of a project are not significant and consequently have not been discussed in detail in the [EIR] . . . .” (Pub. Resources Code, § 21100, subds. (a), (b), (c).)