Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. CGC-03-427163, San Francisco County Super. Ct. No. CPF-03-503844
RIVERA, J.
Katherine Roberts and Trees Not Cars (collectively Trees) appeal an order denying their motion for attorney fees. We affirm.
I. BACKGROUND
We have already discussed much of the pertinent background in our decision in City and County of San Francisco v. All Persons Interested in the Matter (Mar. 21, 2006, A107888) [nonpub. opn.] (Trees I). As we stated there (id. at pp. 2-6):
Empty brackets denote deletions from the decision in Trees I; brackets with material enclosed indicate matter added by this court.
The voters of San Francisco in 1998 approved Proposition J, the Golden Gate Park Revitalization Act of 1998, which provided for an underground public parking facility (the garage) to be built in the music concourse area of Golden Gate Park. (S.F. Admin. Code, appen. 41, § 1 (Prop. J).) The City and County of San Francisco (the City) developed plans for the garage, and through the Golden Gate Park Concourse Authority (the Authority) and the Recreation and Park Commission (the Commission) entered into a lease with Music Concourse Community Partnership (MCCP), which was to operate the garage for 35 years. []
A. Proposition J
The principal purposes of Proposition J were to create a “pedestrian oasis” in the concourse area of Golden Gate Park and to reduce the impact of automobiles in the park while still providing access for visitors. According to the ordinance, access would be enhanced by an underground public parking facility within or near the concourse with a dedicated entrance and exit (or entrances and exits) outside of the park. The ordinance authorized the creation of the Authority, a nonprofit public benefit corporation. (Prop. J, § 1.)
The Authority was given various duties, including the duties to construct and operate an underground parking facility, and “to determine a dedicated access route (or routes) to and from the underground parking facility beginning at a location or locations outside of the Park . . . .” (Prop. J, § 1.) It was authorized to “locate, acquire, design, construct, reconstruct, operate, use, lease, maintain and repair an underground public parking facility . . . with an entrance and exit (or entrances and exits) situated outside of the Park and dedicated exclusively for the underground parking facility, together with any and all physical improvements related to such underground parking facility and dedicated access routes . . . .” (Id., § 2, subd. (a).)
Proposition J provided that the parking facility would be “constructed entirely with funds received through one or more philanthropic donations. (Prop. J, § 1.) []
B. Board Resolutions
In November 2003, the [City Board of Supervisors (Board)] passed several resolutions and approved an ordinance in connection with the garage. Resolution No. 737-03 authorized the execution of a ground lease between the City, the Authority, and the Commission as landlord and MCCP, a nonprofit public benefit corporation formed to fund, design, construct, and operate the garage, as tenant. [] Resolution No. 740-03 approved the issuance of $60 million in bonds for MCCP. Resolution No. 738-03 approved the environmental impact report [(EIR)] for the garage and adopted findings that the garage project was consistent with the City’s general plan. Ordinance No. 262-03 established rates for the garage.
C. The Actions
The City brought a validation action on December 10, 2003, seeking a determination that the three resolutions and ordinance No. 262-03 were proper; that the lease, the bonds, and the construction and operation of the garage would be valid; and that the City’s findings pursuant to the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) were valid.
Trees answered the complaint in validation. It also cross-complained for declaratory and injunctive relief and for a writ of mandate, alleging the City had violated Proposition J and the City Charter, and that the City had unlawfully delegated its authority to MCCP. Another petition for writ of mandate was filed by Save Golden Gate Park, Alliance for Golden Gate Park, Stephen Willis, Christopher Duderstadt, and Janice Rothstein (collectively SGGP). SGGP also filed an answer in the City’s validation action. The trial court consolidated the actions for all purposes.
[The second amended cross-complaint alleged 13 causes of action, challenging the source of the revenues used to build the garage (first, second, and third causes of action); the approval of an entrance and exit inside the park (fourth cause of action); the approval of MCCP to manage the design, construction, and operation of the garage (fifth, sixth, and seventh causes of action); the City’s alleged failure to determine that the garage would not be detrimental to the park (eighth cause of action); the use of revenue from the garage (ninth and tenth causes of action); and the process by which the garage lease had been approved (eleventh, twelfth, and thirteenth causes of action). The trial court indicated that Trees did not pursue the second, third, and eighth causes of action.]
The trial court granted Trees and SGGP’s request for a preliminary injunction and stay of the City’s resolutions on March 12, 2004. The City and MCCP appealed and also petitioned for a writ of supersedeas (appeal No. A105932). Division Four of the First Appellate District granted the petition, [and on April 9, 2004,] stayed the superior court’s orders granting a preliminary injunction and [staying] the contested resolutions.
After the trial court issued its August 10, 2004, statement of decision, discussed post, Division Four dismissed as moot the appeal from the order granting the preliminary injunction.
D. The Rulings and Appeals
[Meanwhile, the matter proceeded on the merits, and the] trial court issued its statement of decision on August 10, 2004. It provisionally validated the garage project and the EIR with the exception of one issue: The City had determined that the garage needed two separate entrances and exits, and designed the garage with one of those entrances and exits inside the park. The trial court [rejected nine of Trees’s remaining ten causes of action, and concluded the City must] consider a dedicated access route to the second entrance and exit. [In doing so, the court stated: “While it may well be that the City has validly exercised its powers and discretion to conclude that it would be both fiscally and physically impossible to build a second entrance outside the park without doing unacceptable violence either to the Park or to the adjacent neighborhoods, nowhere in the voluminous Record is there any meaningful consideration of the dedicated roadway alternative contemplated by § 1, ¶ 7. Until this issue is properly addressed, the Court is unable to give its unqualified approval to the City’s Complaint for Validation.” The trial court thus ordered the City “to undertake with exceptional dispatch those steps that will address the Court’s concerns about the design of the Garage entrance on Academy drive.”] It also refused to enjoin the City from continuing construction work on the garage.
Trees appealed on September 9, 2004. [] Trees also filed a petition for writ of supersedeas, asking us to enjoin project construction pending the decision on [the Trees I] appeal. We denied the petition on December 8, 2004.
On June 16, 2005, while [the Trees I] appeal was pending, the trial court issued an order approving the City’s [revised] design of a second garage entrance and exit with a dedicated access route, granting full and final approval to the City on its complaint for validation, and ruling against Trees and SGGP on their petitions and cross-complaint. Trees appealed that ruling (appeal No. A111025), contending in its opening brief that the [revised] garage design violated Proposition J and that the City should not have rejected a single-entrance design. Appeal No. A111025 was consolidated with [Trees I] for purposes of hearing and decision. However, the issues in appeal No. A111025 became moot after the November 8, 2005, election, in which the voters of San Francisco approved Proposition G, a ballot measure authorizing a design in which one of the entrances and exits to the garage was located inside the park. [Fn. 5 text moved to body of opinion.] In [pertinent] part, Proposition G amended Proposition J to include the following section: “Section 18. In-Park Entrance-Exit [¶] This ordinance shall be construed and applied so that, provided the Underground Parking Facility has at least one dedicated entrance-exit located outside of the Park, the Underground Parking Facility may have one entrance-exit located inside of the Park without dedicated lanes leading from such entrance-exit to a point outside of the Park.” Accordingly, we severed the two appeals and dismissed appeal No. A111025 as moot on December 7, 2005. [We end our quotation from the decision in Trees I.]
In Trees I, Trees raised numerous challenges to the trial court’s decision. It argued that the City had violated Proposition J by approving the use of public funds to construct the garage and by authorizing an entrance and exit located inside the park. Trees further argued that the City had unlawfully delegated its authority over the garage to MCCP; that it had violated the City Charter by failing to obtain the assent of the voters before approving the lease financing agreement and ground lease and by failing to approve a final version of the ground lease; and that the trial court had erred by provisionally validating the City’s actions. We rejected all of Trees’s contentions and affirmed the judgment on March 21, 2006. (Trees I, supra, A107888, pp. 7-18.)
We noted in our opinion in Trees I, supra, A107888, page 6, footnote 6: “The parties have agreed that Proposition G renders moot Trees’s argument in the present appeal that the City violated Proposition J by authorizing a design that included an entrance and exit located inside the park. We agree and will not address the argument here.”
The garage was built with one entrance outside the park and one inside the park.
E. The Motion for Attorney Fees
Trees moved for its attorney fees under Code of Civil Procedure section 1021.5 (section 1021.5), contending it had been “successful” because it had secured a ruling that the City must study a dedicated access route and because its actions had served as a catalyst in the passage of Proposition G, which “legalized the City’s illegal design” for the garage entrance. The trial court denied the motion. In doing so, it indicated that the limited, transitory relief achieved by Trees did not constitute a victory or confer a significant benefit on the public. This timely appeal ensued.
Section 1021.5 provides in pertinent 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, 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.”
II. DISCUSSION
“ ‘Attorney fees are recoverable under section 1021.5 (1) by a successful party, (2) in an action that has resulted in the enforcement of an important right affecting the public interest, (3) if a significant benefit has been conferred on the general public or a large class of persons, and (4) the necessity and financial burden of private enforcement are such as to make the award appropriate. The statute’s purpose is to encourage public interest litigation that might otherwise be too costly to pursue. [Citation.]’ [Citation.] [¶] ‘ “The trial court is to assess the litigation realistically and determine from a practical perspective whether [the statutory] criteria have been met.” [Citation.] Rulings under section 1021.5 are reviewed for abuse of discretion. [Citation.] The questions are whether the court applied the proper legal standards under section 1021.5 and, if so, whether the result was within the range of the court’s discretion [citation], i.e., whether there was a reasonable basis for the decision [citation].’ ” (Lyons v. Chinese Hospital Assn. (2006) 136 Cal.App.4th 1331, 1343-1344 (Lyons).) “Determining whether a party is ‘successful’ within the meaning of section 1021.5 requires an analysis of the surrounding circumstances of the litigation and a pragmatic assessment of the gains achieved by a particular action.” (Protect Our Water v. County of Merced (2005) 130 Cal.App.4th 488, 493 (Protect Our Water).) As our Supreme Court stated: “ ‘The appropriate benchmarks in determining which party prevailed are (a) the situation immediately prior to the commencement of suit, and (b) the situation today, and the role, if any, played by the litigation in effecting any changes between the two.’ ” (Folsom v. Butte County Assn. of Governments (1982) 32 Cal.3d 668, 685, fn. 31 (Folsom).) “The critical fact is the impact of the action, not the manner of its resolution.” (Id. at p. 685.)
Trees suggests the rule enunciated in Folsom applies only to “ ‘catalyst’ ” cases, and not to cases in which the party claiming fees attained judicial relief. Folsom contains no such limitation.
We begin our analysis by noting that Trees’s cross-complaint challenged not just the in-park entrance to the garage but multiple aspects of the entire garage project. Those challenges failed in all respects except for the garage entrance issue. This alone suggests that Trees was not a “successful party.” Trees insists, however, that the judicial scrutiny given to the inside-the-park entrance constituted “ ‘success’ ” on a “ ‘significant issue’ ” in the case. It is true that a party “ ‘ “need not prevail on every claim presented in an action in order to be considered a successful party within the meaning of the section.” ’ ” (Lyons, supra, 136 Cal.App.4th at p. 1345.) Rather, “ ‘ “plaintiffs may be considered ‘prevailing parties’ for attorney’s fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” ’ ” (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1292, italics added; see also Lyons, supra, 136 Cal.App.4th at p. 1346.)
Whether the garage entrance issue can be characterized as “significant” depends, like any other qualitative judgment, on the context within which it is examined. At the pleading stage, the significance of that issue was completely dwarfed by the multiple and extensive challenges to the financing and operational structure of the project and to the legislation effectuating Proposition J. The goal of Trees’s cross-complaint was not to tinker with the traffic flow entering the garage; it sought, rather, to bring the project to a halt, to undo all the construction work already completed and to “restore the Music Concourse area of Golden Gate Park to the condition it was in prior to the start of construction activities” until such time as the financing, operations and local legislation effectuating the project was brought into compliance with Proposition J. In this context, the configuration of a single garage entrance was of marginal significance, at best. Trees attempts to evade this dilemma by recasting the context; it argues that, having forced the issue of the garage entrance to a vote (Proposition G), it vindicated “an important right to valid legislative decision-making on a project of enormous consequence to the quality of life in San Francisco.” In other words, having come to the end of the case virtually empty-handed, Trees now argues that the garage entrance issue in and of itself was of sufficient importance to justify an attorney fee award, irrespective of the overall goals of the cross-complaint.
We need not, however, wrestle with the difficult questions of whether and how to decide the correct context for the determination of the “significan[ce]” of an issue for purposes of an award under section 1021.5 because we conclude, as did the trial court, that Trees was not a successful party. The garage was ultimately built with an entrance inside the park—a result Trees had opposed throughout the litigation.
Trees nevertheless contends it was “ ‘successful,’ ” arguing that the litigation should be divided into two “Phase[s]”: Phase 1, which resulted in the trial court’s August 2004 ruling provisionally validating the garage project and EIR but ordering the City to consider a dedicated access route to the second entrance and exit; and Phase 2, which ended when the voters approved Proposition G and this court dismissed appeal No. 111025 as moot and affirmed the judgment in Trees I, supra, A107888, at pages 6, 18. Trees contends it was a successful party in Phase 1 because the trial court found that the City and MCCP had violated Proposition J by approving a garage design that included an entrance and exit inside the park without considering a dedicated route from outside the park. Trees argues it was a successful party in Phase 2 because it acted as a catalyst for the City’s adoption of Proposition G.
Trees’s contentions present both procedural and substantive difficulties. First: the litigation was never divided into phases. Even if it had been, the trial court did not abuse its discretion in concluding Trees was not a successful party for purposes of section 1021.5. The victory Trees claims is the trial court’s refusal to grant full validation of the project until the City had studied a dedicated access route. Trees appealed this order in Trees I, and contended that Proposition J required all garage entrances and exits to be located outside the park. Moreover, in approving Proposition G, the voters also rejected Trees’s preferred design and allowed the garage to be built with one entrance and exit inside the park. Trees’s action had no effect on the design of the garage. Viewing the matter “ ‘ “realistically and . . . from a practical perspective,” ’ ” we see no abuse of discretion in the trial court’s conclusion that the statutory criteria were not met. (Lyons, supra, 136 Cal.App.4th at p. 1344; see also Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 566 (Graham).)
Indeed, our Supreme Court noted in Folsom that a showing under section 1021.5 that an action has resulted in the enforcement of an important right and that a significant benefit has been conferred “cannot be made until the benefit is secure, in some cases after judgment is final.” (Folsom, supra, 32 Cal.3d at p. 679.)
We similarly reject Trees’s contention that it was successful because the litigation acted as a catalyst in leading the City to place Proposition G on the ballot, thus legalizing the design of the garage. As our Supreme Court has explained, in order to obtain attorney fees under section 1021.5 as a catalyst, a plaintiff must establish, among other things, that “the lawsuit was a catalyst motivating the defendants to provide the primary relief sought.” (Tipton-Whittingham v. City of Los Angeles (2004) 34 Cal.4th 604, 608 (italics added); see also Graham, supra, 34 Cal.4th at p. 567.) The action Trees arguably catalyzed was not the achievement of the primary relief it had sought, but rather the voters’ rejection of Trees’s preferred design and the acceptance of the garage design that Trees had challenged.
The cases Trees cites for its position that it was successful because it acted as a catalyst for the enactment of Proposition G, Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173 (Bowman), Protect Our Water, supra, 130 Cal.App.4th 488, and Schwartz v. City of Rosemead (1984) 155 Cal.App.3d 547 (Schwartz), do not support its position. Trees is correct that in each case the Court of Appeal concluded that a party who brings a lawsuit that results in a public entity complying with legal requirements can be “successful” or confer a significant benefit on the public. (Bowman, supra, 131 Cal.App.4th at pp. 177-178 [local group successful in setting aside approval on grounds it did not receive a “ ‘fair trial’ ” at the city council meeting at which project was approved]; Protect Our Water, supra, 130 Cal.App.4th at p. 494 [Court of Appeal stated administrative record was inadequate to support certification of EIR and directed trial court to issue order setting aside approval of project]; Schwartz, supra, 155 Cal.App.3d at p. 558 [city required to comply with California Environmental Quality Act, allowing public to voice concerns about proposed cogeneration plant].) In each case, however, the party seeking attorney fees had obtained judicial relief on at least one cause of action. (Bowman, supra, 131 Cal.App.4th at pp. 177-178; see also Protect Our Water, supra, 130 Cal.App.4th at p. 494; Schwartz, supra, 155 Cal.App.3d at pp. 551-552.) Here, on the other hand, the only judicial “success” Trees achieved was the order requiring the City to study a dedicated access route, an order that Trees challenged on appeal as inconsistent with Proposition J. Thus, Trees failed to achieve any of its primary litigation objectives.
As the court noted in Bowman, supra, 131 Cal.App.4th at page 178, the significance of a partial victory is a matter for the trial court’s discretion. The trial court here did not abuse its discretion in rejecting Trees’s contention that it was entitled to attorney fees as a successful party.
III. DISPOSITION
The order denying Trees’s motion for attorney fees is affirmed.
We concur: REARDON, Acting P. J., SEPULVEDA, J.