Clarification Of Success Facto Under CCP § 1021.5 Is Sorely Needed In This Area.
Our local 4/3 DCA in Protect Our Homes And Hills v. County of Orange (Yorba Linda Estates), Case No. G054631 (4th Dist., Div. 3 Oct. 25, 2018) (unpublished) was an appeal from a situation where CEQA petitioners “partially” prevailed in an action—winning one greenhouse emission issue out of close to 30 issues raised—and with the lower court awarding them $409,000 in fees under the private attorney general statute and additional costs. Developer was not happy and appealed, but the appellate court affirmed in a panel decision authored by Justice Thompson.
In the court below, the trial judge found that an award of pre-administrative hearing petition work—which he did allow—was faced with a split in authority between Beach Colony II v. California Coastal Comm’n, 166 Cal.App.3d 106 (1985) (no) and Edna Valley Watch v. County of San Luis Obispo, 197 Cal.App.4th 1312, 1317 (2011) (yes). The appellate court sidestepped the conflict by finding that the rulings in these cases were dicta or distinguishable. Instead, it found that the Public Records Act was not administrative proceeding work but directly related to the CEQA litigation.
The reviewing court then had to face whether administrative record preparation work had to be claimed through a costs memorandum, or could be raised instead through a fee motion. The appellate court concluded that it could be done by either method under CCP § 1094.5, and that the developer faced no prejudice by it being raised through a fee motion.
Developer also challenged that the A/R costs were unjustified because developer/City had to do them because CEQA petitioners were recalcitrant. Although not really disagreeing, the reviewing court found that trial judges on a “case-by-case review” could determine if costs should be awarded even if the 60-day deadline for certification record had been or was close to blown by CEQA petitioners.
Finally, that brought the court to the lack of success issue. Even though CEQA petitioners only prevailed on one issue, the appellate court found that the possible qualitative value of the greenhouse issue allowed the lower court discretion to award substantial fees even though losing other issues which were not found to be frivolous in nature.
BLOG OBSERVATION—Co-contributor Mike was the lead appellate attorney on the case and has no “sour grapes” with the opinion, although he does disagree with some of the determinations. The most glaring one is that there needs to be clarification on what constitutes success in CEQA litigation when petitioners lose a huge amount of their issues. No “frivolousness” benchmark determines success, such that allowing trial judges to use this test means CEQA petitioners have no incentive to not adopt a “kitchen sink” approach to raising issues. There is a good “issue by issue” test enunciated in the SOURCE state court case, which builds on federal Sierra Club cases on this contention. This success argument needs to be clarified given that some intermediary appellate decisions have admitted that the distinction between “claims,” “issues,” and “theories” in this area is confusing at best and has no elucidating analytics.