Fourth District, Division 2 Finds CCP Section 1021.5 Requirements Were Satisfied.
Under our category “Private Attorney General Statute,” we have explored the requirements for an award of attorney’s fees under Code of Civil Procedure section 1021.5. (After all, in a return to basics, the “American Rule” does allow a prevailing party to obtain a fee award if the party can show entitlement under either a contract or a statute.) Section 1021.5 does allow a fee award where (1) a successful plaintiff’s action has resulted in the enforcement of an important right affecting the public interest, (2) a significant, 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 are such as to make the award appropriate. (Press v. Lucky Stores, Inc., 34 Cal.3d 311, 317-318 (1983).) These requirements came into play in the next case we review.
Developer applied to the City of Moreno Valley for approval of a tentative tract map to subdivide about 76 acres into residential lots, which were adjacent to about 18 acres of vacant land owned by Mr. Monaco. He challenged the City’s approval of the project and the adoption of a negative declaration, essentially arguing an environmental impact report (EIR) was required, in a superior court mandate proceeding. The superior court basically found that there were potential flooding adverse effects that would impact the greater public and there were aesthetic issues resulting from destruction of visually significant rock outcroppings, ordering preparation of an environmental analysis (but not an EIR). City subsequently rescinded the approval of the project’s tentative tract map and the negative declaration.
Now, to the part we cater to: the fee award. Mr. Monaco moved to recover $263,621.79 in fees pursuant to section 1021.5, a motion opposed both by City and developer. The trial court eventually awarded Mr. Monaco $131,810.89 in fees (a lodestar of $175,747.86, reduced by a negative multiplier of 25%), and developer appealed.
It lost, in a 3-0 decision in Monaco v. City of Moreno Valley, Case No. E045261 (4th Dist., Div. 2 Oct. 15, 2009) (unpublished).
Argument #1—The trial court allowed in certain evidence over developer’s objections. Response—No, you waived the objections by failing to request rulings on the evidentiary objections during the hearing. A passing reference to the objections, without a real request to rule, did not suffice.
Argument #2—The trial court should not have considered two challenged maps that were stricken from consideration in the writ proceeding. Response—No, even if not relevant in the writ proceeding, the maps were relevant in the fee proceeding to show whether Mr. Monaco demonstrated a significant public benefit.
Argument #3—No case law allowed for a 1021.5 fee recovery in a CEQA context unless an EIR was actually ordered. Response—No, the trial court did order preparation of an environmental analysis, and no case law existed to say that such an order does not vindicate a public right.
Argument #4—Mr. Monaco’s action did not enforce an important public right. Response—No, CEQA compliance has been recognized as an important right in many cases—with the flooding and aesthetic concerns comprising significant environmental issues.
Argument #5—No significant benefit was conferred on a class of persons. Response—No, the citizens of Moreno Valley were benefited by CEQA compliance (especially on flooding and street issues) and the litigation might improve the City’s review of future projects under CEQA.
Argument #6—Mr. Monaco had a direct pecuniary interest that outweighed any incidental benefit to others. Response—No, nothing in the record showed he had any direct or immediate economic benefit from stopping the project, with any future benefit from possible flooding controls only resulting in a speculative benefit to Mr. Monaco.
Upshot: fee award affirmed, and the appellate panel allowed Mr. Monaco an opportunity to seek further fees for winning on appeal.