Opinion
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. 0798628
Haerle, J.
I. INTRODUCTION
Defendants and appellants State Water Resources Control Board and Victoria Whitney (the Board) appeal from an award of attorney fees to plaintiff and appellant Rustic Retirement under Code of Civil Procedure section 1021.5 . The Board contends that the trial court erred in awarding attorney fees because the statutory requirements for the award were not met. We agree, and reverse. We also reject Rustic Retirement’s cross-appeal seeking the full amount of the fees it requested.
All further statutory references are to the Code of Civil Procedure, unless otherwise noted.
II. FACTUAL AND PROCEDURAL BACKGROUND
Rustic Retirement is a family-owned business comprised of Jared Carter, who is also counsel of record in this matter, his wife and adult children. In the fall of 2000, Rustic Retirement entered into a purchase agreement for a 160-acre piece of property in Ukiah, which was part of a parcel twice that size. One of the conditions of the purchase was that the parcel could be successfully subdivided. Additionally, an important element of the project was the construction of a dam on the property. The dam was intended to create a lake of about two surface acres, provide water for a vineyard and a home on the property and also to serve recreational and fire protection purposes (the project).
Rustic Retirement filed three applications: first, in 2000, it filed an application for a subdivision with Mendocino County; second, in 2001, it filed an application with the California Department of Fish and Game for a streambed alteration agreement under former Fish and Game Code section 1603, subdivision (b) (the section 1603, subd. (b) permit); and third, also in 2001, it filed an application with the Board for a water allocation permit.
Rustic Retirement’s first application, for a subdivision approval, went relatively smoothly. The County acted as the lead agency for the subdivision application under the California Environmental Quality Act (CEQA), adopted a negative declaration for the project under CEQA and approved the subdivision.
The Department of Fish and Game, which was responsible for issuing the section 1603, subdivision (b) permit, requested a new environmental study for the permit. Rustic Retirement entered into an arbitration with the Department of Fish and Game after it learned of this requirement. The arbitration resulted in a judgment that the dam could be built “pursuant to a number of conditions designed to assure structural integrity and mitigate to the maximum feasible extent all environmental impacts resulting from construction and operation of the dam.” A new environmental study was not required.
Both before and after the arbitration decision was made and, according to the petition, with full knowledge of the arbitration between Rustic Retirement and the Department of Fish and Game, the Board nevertheless demanded that Rustic “prepare redundant studies of issues that were studied and decided in the County’s approval of the subdivision and in the arbitration proceedings....” According to Rustic Retirement, the Board “unlawfully demanded that Rustic hire independent experts, selected by and to be the agents of Defendants, to prepare an environment study... even though the information in [the Board’s possession] that had previously been submitted by Rustic demonstrated clearly and conclusively that appropriation and use of water as would be sought by Rustic’s application would, beyond any doubt, cause no adverse environmental impacts....” In sum, “[n]o new information or changes in the project were cited” by the Board “to justify” studies the Board demanded.
Nevertheless, Rustic Retirement contends it attempted to comply with the Board’s demands, “but [the Board]... unlawfully protracted and delayed each step of the permit procedure required by law” and, “[i]n early 2005, [the Board] unlawfully attempted to justify their delay by saying there were 160 applications ahead of [Rustic Retirement’s] application....”
Rustic Retirement filed a Petition for Writ of Mandate on February 9, 2007. In this petition, Rustic Retirement sought a writ directing the Board to drop its requirement that Rustic Retirement provide it with additional environmental studies and, instead, to process Rustic Retirement’s application without these requirements. Rustic Retirement also sought a declaration that it is “entitled to have [the Board] process and decide its application on the basis of the record before Defendants, without any additional studies; that Rustic is entitled to have their application approved....” In addition, Rustic Retirement sought money damages.
The Board demurred to the fourth cause of action in the petition on the ground that the damages claim was barred and also moved to strike damages claims from the remaining causes of action. The trial court granted the demurrer to the fourth cause of action, which contained the damages claim, struck the damages claim from the third cause of action, and allowed the damage claims in the remaining causes of action to go forward.
It was not until Rustic Retirement filed a reply brief in support of its petition that the issue of the timeliness of the Board’s processing of Rustic Retirement’s application was raised. Until then, as the Board points out in its brief to us, the focus of the lawsuit was on the question of whether the Board could require additional environmental review before acting on Rustic Retirement’s application.
In its reply brief, Rustic Retirement supplied the trial court with a document that described an audit of the Board’s processes. The article, which was critical of the Board’s management of applications, pointed out that the Board took, on average, 3.3 years to issue water permits. The petition was not, however, amended in any way to seek relief based on this information.
After considerable briefing and argument, the trial court rejected Rustic Retirement’s request that it be permitted to proceed without additional studies, finding that there was insufficient evidence in the record to support Rustic Retirement’s assertions that environmental reviews performed by the County for Rustic Retirement’s subdivision application and by the Department of Fish and Game for the streambed alteration agreement satisfied CEQA requirements for the diversion and impoundment of water behind the proposed dam.
The trial court also found that Rustic Retirement had not “shown that [the Board was] statutorily obligated to issue the requested appropriation permit at this time.”
The court did find, however, that the Board is “statutorily obligated to consider and process the May 10, 2001 [application] in a reasonably timely manner and that it has failed to do so without justification.”
In its tentative decision, the trial court stated that the Board’s “handling of Rustic’s application has been unconscionable!” It elaborated, “I have been involved in planning and land use matters for thirty-plus years as an attorney and as a judge. I have never encountered an application for a permit that has been unreasonably delayed for even a third of the time involved in this application.“ The court continued, “[w]hile the documented delay of three to four years is itself unreasonable, it is particularly egregious in view of the relative simplicity and amount of the requested appropriation.”
The trial court held that Rustic Retirement was “entitled to a writ effectively compelling respondent Department to promptly consider and process petitioner's application without unreasonable delay. The writ shall direct the Department to promptly review and respond to all submissions by petitioner within 30 days of receipt. Once the Department has determined the initial study is complete, the Department shall have 60 days to determine... whether the project may proceed on the basis of a negative declaration.”
Rustic Retirement sought attorney fees in the amount of $230,460 under Code of Civil Procedure section 1021.5. The trial court found that, although Rustic Retirement “failed to achieve their primary objectives [i.e., to compel the Board to consider and approve their application without providing any further supporting materials], they did obtain a significant result.” The trial court also found that Rustic Retirement did not “prevail on issues of first impression.” The court found that “the Department had apparently adopted the position that it was not under any obligation to attempt to marshal the resources available to it in order to process applications and submissions within a reasonable period of time. The Department simply reviewed applications in the order received and at the speed it determined reasonable without regard to the ever increasing backlog and the resultant hardships it inevitably imposed upon the public. The Department made no significant showing of a good faith attempt to process less complicated applications more promptly or of an inability to better allocate its resources to prevent or at least minimize unreasonable delays. Given the large numbers of applications pending before the Department and the pervasive delays in the processing of those applications, petitioners did enforce an important public right even though its impact is limited primarily to applicants before the Department.” The trial court held that “petitioners’ success should benefit the thousands of applicants with requests pending before the Board. In addition, it may stand as a warning to state and local agencies that they should not impose the requirement of public-agency approvals on private action without also providing adequate resources to process applications within a reasonable period of time.”
Finally, the trial court found that “[a]s pled, petitioners’ request for relief was based on a narrow and very specific set of facts which was unlikely to apply to any other party. Nonetheless, they achieved a result with a broader application and should not be denied... some recovery of the costs of achieving that beneficial result.”
The court awarded Rustic Retirement $75,000 of its total request of $230,460 for fees, noting that “Petitioners did not establish any new principles of law or vindicate any new or developing public rights. They were successful only in applying principles of existing law to a stubborn, self-centered public bureaucracy. The legal issues underlying the relief granted by the court were neither original nor complex. Petitioners failed to achieve the gravamen of their petition: to compel the Board to accept the environmental determinations previously made by the Department of Fish and Game and/or County of Mendocino. The most significant portion of petitioners’ legal efforts in this action were directed towards that effort rather than towards the relief actually granted.”
This timely appeal and cross-appeal of the court’s fee award followed.
II. DISCUSSION
A. Section 1021.5 Attorney Fees
Section 1021.5 provides that a trial court may award attorney fees to a party that meets each of the following requirements: (1) it was the “successful party”; (2) it enforced an important right affecting the public interest; (3) it conferred a significant benefit on the general public; (4) the necessity and financial burden of private enforcement make an award of fees appropriate; and (5) in the interest of justice the fees should not be paid out of any recovery. (Code Civ. Proc., § 1021.5; Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 930 (Woodland Hills).)
As we recently explained, ““‘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 [citations]... [¶]... [T]he “‘scope of discretion always resides in the particular law being applied, i.e., in the “legal principles governing the subject of [the] action....” Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an “abuse” of discretion.’ [Citations.]”’” (Lyons v. Chinese Hospital Assn. (2006) 136 Cal.App.4th 1331, 1344-1345 (Lyons).)
We note that the Board refers to this standard of review as “de novo,” a description to which Rustic Retirement takes exception. Suffice it to say that our standard of review is clearly abuse of discretion, the application of which we thoroughly described in Lyons, supra, 136 Cal.App.4th at pp. 1344-1345.
B. Summary of Facts
Rustic Retirement contends that the Board’s statement of facts violates California Rules of Court, rule 8.204(a)(2)(c), which requires that the parties’ briefs must provide a summary of the significant facts. We disagree. Our review of the briefs and the record indicates that the Board’s economical statement of facts is more than adequate. The purported omissions and mischaracterizations raised by Rustic Retirement are well within the limits of appropriate advocacy or are simply irrelevant to the issues before us.
C. Significant Benefit Conferred
The Board contends that the trial court abused its discretion in awarding attorney fees because Rustic Retirement (1) could not be considered a successful party under section 1021.5, (2) did not vindicate an important right or (3) did not confer a significant benefit on the general public or a large class of persons. Finally, the Board argues that the necessity and financial burden of private enforcement are insufficient to make an award appropriate.
Although the Board argues that none of the requirements for awarding fees is present in this matter, we need not consider each prong of the test for awarding fees under section 1021.5, because we conclude that this litigation vindicated only a private interest, and did not confer a benefit on the general public or a large group of people. The trial court’s determination to the contrary was outside “the confines of the applicable principles of law.” (Lyons, supra, 136 Cal.App.4th at p. 1344.) Accordingly, the trial court abused its discretion in awarding Rustic Retirement attorney fees under section 1021.5.
The trial court’s order resulted in relief for no one other than Rustic Retirement. It specifically held that Rustic Retirement was “entitled to a writ effectively compelling respondent Department to promptly consider and process petitioner’s application without unreasonable delay. The writ shall direct the Department to promptly review and respond to all submissions by petitioner within 30 days of receipt. Once the Department has determined the initial study is complete, the Department shall have 60 days to determine whether the project may proceed on the basis of a negative declaration.” (Emphasis added.) This writ directed the Board to take certain actions that were applicable only to Rustic Retirement’s pending application. The trial court incorrectly characterized its order as having a broad impact when it stated in its decision that “petitioners’ success should benefit the thousands of applicants with requests pending before the Board. In addition, it may stand as a warning to state and local agencies that they should not impose the requirement of public-agency approvals on private action without also providing adequate resources to process applications within a reasonable period of time.”
The trial court’s rationale for awarding fees as a “warning” to the Board is inconsistent with the fundamental objective of the private attorney general doctrine, which is to “‘“encourage suits effectuating a strong [public] policy by awarding substantial attorney’s fees... to those who successfully bring such suits and thereby bring about benefits to a broad class of citizens.”’ [Citation.]” (Woodland Hills, supra, 23 Cal.3d at p. 933.) We also fail to see how a writ that directs the Board to take certain actions with regard to an individual applicant will, with any certainty, benefit anyone other than the individual applicant. Indeed, as the Board points out, the writ simply places Rustic Retirement at the head of a long line of applicants and, if anything, displaces those who were in line ahead of Rustic Retirement.
Similarly, in Ryan v. California Interscholastic Federation (2001) 94 Cal.App.4th 1033, a foreign high school student filed a complaint seeking to require the California Interscholastic Federation to rescind requirements that kept the student from participating in athletic competition. The court held that the student’s claim did not confer a significant benefit on a large class of people because the trial court’s ruling focused only on the individual student and did not declare the rights of all high school student athletes. Such a result cannot be seen as conferring a benefit on a large group of people. (Id. at pp. 1045-1047.)
Roybal v. Governing Bd. of Salinas City Elementary School Dist. (2008) 159 Cal.App.4th 1143 (Roybal) also supports our conclusion. In Roybal, the court found that attorney fees could not be awarded under section 1021.5 because the remedies won by the plaintiffs did not confer any substantial benefit on the public or a large class of persons. In reaching this result, the court explained that the plaintiffs’ lawsuit did not name any other persons beyond the plaintiffs, and the primary purpose of the litigation was to obtain reinstatement and damages for the school district employees who brought the suit. Here, too, Rustic Retirement’s suit did not result in relief from the Board’s delay in processing applications for anyone other than Rustic Retirement.
Rustic Retirement attempts to distinguish Roybal by arguing that Rustic Retirement did not receive an award of damages, as the plaintiffs in Roybal did, and Rustic’s lawyers “brought this action only because of the prospect of a fee award under CCP § 1021.5.” These are distinctions without a difference, however. The plaintiffs in Roybal, like Rustic Retirement, brought a claim to vindicate a private right, a vindication that essentially did not benefit anyone other than themselves.
This case is in direct contrast to Lyons, in which we found the trial court should have awarded attorney fees when it enjoined a defendant from violating, in any of the buildings it owned, certain state regulations designed to protect the health of building users and workers. The parties conceded that this injunction benefited a large group of people: those who were present in the many buildings owned by the defendant.
Nor do we agree with Rustic Retirement that the Board’s opposition to the fee award on this ground amounts to an argument that “this case accomplishes nothing significant because they [the Board] are going to ignore it.” The court’s order is directed only to the Board’s relationship with Rustic Retirement. Rustic Retirement did not seek or obtain, as the plaintiffs in Lyons did, relief that would benefit a large group of people. For that reason, the trial court erred in awarding fees.
D. Cross-Appeal
Because we conclude that the court erred in awarding fees, we do not consider Rustic Retirement’s cross-appeal seeking to have the fee award increased.
IV. DISPOSITION
The fee award is reversed. Costs on appeal are awarded to appellants.
We concur: Kline, P.J., Lambden, J.