Opinion
H043902
10-15-2018
AG LAND TRUST, Plaintiff and Respondent, v. MARINA COAST WATER DISTRICT, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. M105019)
I. INTRODUCTION
Appellant Marina Coast Water District (Marina Coast) appeals from an order awarding respondent Ag Land Trust more than $1.2 million in attorney's fees under Code of Civil Procedure section 1021.5 based on the "catalyst theory." (See Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 560-561 (Graham).)
All further statutory references are to the Code of Civil Procedure.
This is the third appeal in this action. Relevant here, in the underlying litigation Ag Land Trust brought a CEQA challenge to Marina Coast's approval of the Regional Desalination Project, a project that also involved other entities including the California American Water Company (Cal-Am). Ag Land Trust initially prevailed in the CEQA action involving the project, and Marina Coast appealed. The project became defunct after Cal-Am withdrew its support for the project. This court consequently determined that the appeal in the CEQA action involving the project was moot, and that Ag Land Trust's petition for writ of mandate in the CEQA action should be dismissed as moot by the trial court. (Ag Land Trust v. Marina Coast Water Dist. (Aug. 26, 2013, H038550) [nonpub. opn.] (Ag Land Trust I).)
California Environment Quality Act, Public Resources Code section 21000 et seq.
Cal-Am was not a party in the CEQA action between Ag Land Trust and Marina Coast.
In a second appeal by Marina Coast that was pending at the same time, we reversed a postjudgment order awarding attorney's fees of more than $1.2 million to Ag Land Trust in view of the reversal of the judgment. (Ag Land Trust v. Marina Coast Water Dist. (Nov. 17, 2014, H039559) [nonpub. opn.] (Ag Land Trust II).) In this second appeal, Ag Land Trust argued that, notwithstanding the reversal of the judgment, it was still entitled to attorney's fees under section 1021.5 based on the catalyst theory. We remanded the matter to allow the trial court to decide this issue in the first instance and to make any necessary factual determinations.
Upon a second motion for attorney's fees by Ag Land Trust, the trial court again awarded attorney's fees of more than $1.2 million, but this time under the catalyst theory. In this appeal, Marina Coast raises several challenges to the attorney's fees order.
For reasons that we will explain, we determine that Ag Land Trust failed to establish one of the elements of the catalyst theory, that is, its "lawsuit was a catalyst motivating the [defendant] to provide the primary relief sought" in the lawsuit (Tipton-Whittingham v. City of Los Angeles (2004) 34 Cal.4th 604, 608 (Tipton-Whittingham)). In its lawsuit, Ag Land Trust sought to have Marina Coast set aside its approval of the Regional Desalination Project and prepare a new environmental impact report for the project under CEQA, but there was no evidence that Marina Coast undertook any of these actions. Further, although Marina Coast stopped proceeding with the project, the undisputed evidence reflects that this was due to Cal-Am's withdrawal from the project. Marina Coast continuously defended against the lawsuit until the lawsuit was deemed moot and even tried (unsuccessfully) to force Cal-Am to continue with the project. In view of these circumstances, we will reverse the attorney's fees order.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Regional Desalination Project
The history of the Regional Desalination Project begins many years ago when "the State Water Resources Control Board [(the Water Control Board)] . . . found that [Cal-Am], which was the principal supplier of water to the Monterey Peninsula, had diverted excess water from the Carmel River basin 'without a valid basis of right,' causing environmental harm. Cal-Am was ordered to substantially limit its diversions, to mitigate the environmental effects of its excess usage and to develop a plan for obtaining water legally." (Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 108.)
Among Cal-Am's subsequent efforts to find a legal water source was a proposal for the Coastal Water Project, which included a water desalination plant. Cal-Am is a privately-owned public utility that is regulated by the California Public Utilities Commission (PUC). The PUC designated itself as the lead agency for environmental review of the Coastal Water Project. Cal-Am filed an application with the PUC for a certificate of public convenience and necessity for construction and operation of the Coastal Water Project. The PUC issued a notice of preparation of an environmental impact report (EIR) in 2006.
Thereafter, various entities including Marina Coast, a public utility that provides water service to the City of Marina and its vicinity, proposed an alternative desalination project known as the Regional Project, or the Regional Desalination Project. The PUC approved Cal-Am's participation in the Regional Desalination Project.
The PUC's draft EIR evaluated the Regional Desalination Project and the Coastal Water Project proposed by Cal-Am. The final EIR was issued by the PUC and certified in December 2009. The PUC did not approve a specific project.
In March 2010, Marina Coast's Board of Directors approved acquisition of property for the location of a water desalination plant. On April 5, 2010, the Board of Directors also approved Marina Coast's participation in the Regional Desalination Project on the condition that the PUC approve a settlement agreement pertaining to the Regional Desalination Project between, among others, Cal-Am and Marina Coast. The PUC approved the settlement agreement and issued a certificate of public convenience and necessity to Cal-Am for the Regional Desalination Project.
B. Ag Land Trust's Petition for a Writ of Mandate
Ag Land Trust is a self-described "California nonprofit public benefit corporation created with the intent to preserve Monterey County farmland . . . ." In April 2010, Ag Land Trust filed a first amended petition for a writ of mandate against Marina Coast. Ag Land Trust asserted that Marina Coast had formally approved the Regional Desalination Project on April 5, 2010, in reliance on the final EIR certified by the PUC in 2009 and a March 2010 addendum. Ag Land Trust sought declaratory relief, consisting of a declaration that Marina Coast had a duty to identify or obtain water rights for the Regional Desalination Project and a declaration that the Regional Desalination Project would violate the Monterey County Water Resources Agency Act. Additionally, Ag Land Trust sought a peremptory writ of mandate directing Marina Coast to set aside its approvals of the Regional Desalination Project and to prepare a legally adequate EIR in compliance with CEQA. Specifically, Ag Land Trust's prayer for relief sought a peremptory writ of mandate directing Marina Coast to "(a) vacate and set aside its approvals of the Regional Desalination Project, and each step approved by [it], and (b) prepare, circulate and consider a legally adequate environmental impact report and otherwise to comply with the [CEQA] in any subsequent action taken to consider and/or approve the Project," as well as temporary and permanent injunctive relief.
C. The Trial Court's Judgment
A bench trial was held on Ag Land Trust's petition for writ of mandate, and the trial court found in favor of Ag Land Trust. The court issued an "[i]ntended [d]ecision" in December 2011, and ultimately issued an amended statement of decision in February 2012.
In April 2012, the court filed a judgment granting the first amended petition for writ of mandate and ordering issuance of a peremptory writ of mandate. The judgment included the court's findings, as follows: "The Court FINDS AND DETERMINES that Marina Coast Water District prejudicially abused its discretion and failed to proceed in the manner required by law in making its approvals of the Regional Desalination Project on March 16, 2010 and April 5, 2010, by proceeding as a responsible agency rather than as a lead agency, by failing to properly analyze the environmental impact report as a lead agency under CEQA, and by failing to properly and adequately identify, discuss, and address the environmental impacts of the project, including but not limited to water rights, contingency plan, assumption of constant pumping, exportation of groundwater from the Salinas Valley Groundwater Basin, brine impacts, impacts on overlying and adjacent properties, and water quality, as required here for a lead agency under CEQA." The court reserved jurisdiction over Ag Land Trust's claim for an award of private attorney general fees and costs under section 1021.5.
Also in April 2012, the trial court issued a peremptory writ of mandate directing Marina Coast to: (1) "[v]acate and set aside its March 16, 2010 and April 5, 2010 approvals of the Regional Desalination Project," and (2) "prepare, circulate and consider a legally adequate environmental impact report and otherwise to comply with [CEQA] in any subsequent action taken to consider approval of the project and/or approve the project."
Marina Coast appealed from the judgment.
D. The PUC Proceedings
While Marina Coast's appeal from the judgment was pending, there were ongoing separate proceedings before the PUC. In July 2012, the PUC issued a decision finding that Cal-Am had withdrawn its support for the Regional Desalination Project and had filed a new application for approval of a different project, the Monterey Peninsula Water Supply Project. (Application of California-American Water Company (2012) Cal. P.U.C. Dec. No. 12-07-008 , pp. **1, 34 (Decision No. 12-07-008).)
In its decision, the PUC observed that Cal-Am was subject to a "Cease and Desist Order" issued by the Water Control Board that required Cal-Am to cease diverting water from the Carmel River by the end of December 2016 and to replace 7,062 acre-feet of water, or face severe restrictions. (Decision No. 12-07-008, supra, p. *33.) The PUC indicated that in 2010, the Regional Desalination Project "appeared to be a feasible project that could be constructed in time to meet the requirements of the Cease and Desist Order." (Id. at p. *10)
The PUC explained, however, that by early 2012, Cal-Am had withdrawn its support of the Regional Desalination Project. (Decision No. 12-07-008, supra, p. *16.) Cal-Am provided a timeline to the PUC that identified the events leading up to its decision to withdraw support for the project, and the timeline included a reference to the December 2011 "intended decision" by the "Superior Court Judge." (Ibid.) Cal-Am also specifically raised concerns to the PUC about CEQA and Ag Land Trust's litigation against Marina Coast, and referred to the trial court's intended and amended statements of decision in December 2011 and February 2012. (Decision No. 12-07-008, supra, p. *17.) Cal-Am argued to the PUC that Marina Coast could, among other actions, issue its own EIR or appeal the trial court's decision. Cal-Am believed, however, that "any of those actions would take a substantial amount of time - time that was not available, because of the implications of the Cease and Desist Order. Pursuant to the Cease and Desist Order, Cal-Am must replace 7,062 acre-feet of water no later than December 2016." (Id. at pp. **17-18.) Cal-Am filed an application with the PUC seeking to pursue a different water supply project, the Monterey Peninsula Water Supply Project, in lieu of the Regional Desalination Project. (Id. at pp. **22-23.)
In the PUC proceeding, Marina Coast disagreed with Cal-Am and contended that the PUC should order Cal-Am to move forward with the Regional Desalination Project. (Decision No. 12-07-008, supra, p. *19.)
In its decision, the PUC concluded that it was "not reasonable to force Cal-Am to pursue the Regional Desalination Project" in view of "the uncertainty surrounding CEQA, financing, and the ability to obtain permits for the Regional Desalination Project." (Decision No. 12-07-008, supra, p. *35.) The PUC explained as follows: "We are persuaded that Cal-Am must pursue a reasonable and feasible course of action to obtain a potable water supply in a timeframe that will allow Cal-Am to comply with the Cease and Desist Order. . . . [¶] It is unfortunate that Cal-Am withdrew its support for the Regional Desalination Project, but given the various events that have overtaken the decisions we reached in December 2010, we see no alternative but to move forward with the new application . . . seeking the Monterey Peninsula Water Supply Project. At this point, there is simply too much uncertainty associated with the Regional Desalination Project to force Cal-Am to pursue that project further. It is not reasonable to allow time to continue to elapse and costs to continue to accrue for the Regional Desalination Project, a project that, due to a significant change in circumstances since 2010, has no reasonable prospect of achieving its goals. In terms of the many requirements necessary to ensure that a reasonable water supply source is in place by December 2016, there is no time to lose, as Cal-Am has pointed out." (Id. at pp. **26-28.)
E. The Appeal from the Trial Court Judgment (Ag Land Trust I)
Subsequently, in an August 2013 opinion, this court determined that Marina Coast's appeal from the trial court's judgment in Ag Land Trust's CEQA action was moot. (Ag Land Trust I, supra, at pp. 10-11.) This court observed that the parties had "agree[d] that the Regional Desalination Project will not go forward since Cal-Am has withdrawn its support." (Id. at p. 10.) This court thus determined that the Regional Desalination Project "will not be implemented due to Cal-Am's withdrawal," and that the project was "now defunct." (Id. at p. 11.) This court declined the parties' invitation to issue an advisory opinion on the adequacy of the EIR and the other issues raised in the appeal with respect to the Regional Desalination Project. (Ibid.) This court determined that the appropriate disposition was to reverse the judgment and remand the matter with directions to the trial court to dismiss Ag Land Trust's petition for writ of mandate as moot. (Id. at pp. 12-14.)
F. The First Attorney's Fees Order and Appeal (Ag Land Trust II)
While Marina Coast's appeal from the judgment was pending and prior to this court's decision in Ag Land Trust I, the trial court in a February 6, 2013 order granted a motion by Ag Land Trust for private attorney general's fees pursuant to section 1021.5. The trial court awarded Ag Land Trust a total of $1,285,510.90 in attorney's fees.
Marina Coast appealed the attorney's fees order on the primary ground that this court's reversal of the judgment required reversal of the order. We agreed that reversal of the judgment required reversal of the attorney's fees order. (Ag Land Trust II, supra, at p. 12.) However, we remanded the matter for the trial court, upon motion by Ag Land Trust, to exercise its discretion under the standard stated by the California Supreme Court in Graham, supra, 34 Cal.4th 553, for an award of section 1021.5 private attorney general's fees under the catalyst theory.
G. Ag Land Trust's Second Motion for Attorney's Fees (Catalyst Theory)
After the matter was remanded to the trial court, Ag Land Trust filed a second motion for attorney's fees, arguing it was entitled to fees under the catalyst theory. Ag Land Trust contended that it satisfied the three elements of the catalyst theory because: (1) its lawsuit was a catalyst motivating Marina Coast to provide the primary relief sought in the lawsuit; (2) the lawsuit was not frivolous, unreasonable, or groundless; and (3) Ag Land Trust reasonably attempted to settle the litigation prior to filing its lawsuit.
Regarding the first element under the catalyst theory, Ag Land Trust contended that it achieved what it sought in the litigation, that is, it stopped Marina Coast from building a desalination facility based on a defective EIR. Ag Land Trust argued that "Marina Coast has admitted that due to Cal-Am's withdrawal the project will not go forward." Ag Land Trust further argued that its lawsuit "was a significant factor causing Cal Am's withdrawal from the project, which prevented Marina Coast from moving forward with the project." Ag Land Trust contended that its litigation was therefore "a significant contributing factor in causing Marina Coast to change its behavior."
H. Marina Coast's Opposition
Marina Coast argued in opposition that Ag Land Trust was not entitled to attorney's fees because, among other reasons, Ag Land Trust could not establish any of the three elements of the catalyst theory. Regarding the first element, Marina Coast argued that Ag Land Trust did not obtain the primary relief it sought in its petition for writ of mandate, that is, rescission of Marina Coast's resolutions approving the project. Marina Coast also argued that Ag Land Trust's lawsuit was not a catalyst for any voluntary change in Marina Coast's behavior. Rather, the litigation caused a change in Cal-Am's behavior, while Marina Coast continued litigating and pursued its two appeals (one regarding the judgment and one regarding the first attorney's fee order).
Regarding the second and third elements, Marina Coast contended that Ag Land Trust's lawsuit lacked merit, including because the trial court did not have subject matter jurisdiction, and that Ag Land Trust failed to engage in reasonable prelitigation settlement efforts.
I. Ag Land Trust's Reply
Ag Land Trust reiterated in reply that it had met all the elements of the catalyst theory. Regarding the first element, Ag Land Trust argued that it had achieved the primary relief it sought, and that Marina Coast had changed its behavior. Specifically, Marina Coast was not constructing the project or using the challenged EIR, and the litigation was a contributing factor to that result. Ag Land Trust contended that the continued existence of Marina Coast's resolutions regarding the project was therefore "not material" in determining whether the litigation was a catalyst in achieving the results obtained. Ag Land Trust asserted that Cal-Am's "role was primarily in funding the Regional Project and serving as a customer," and that Ag Land Trust's litigation was a factor in Cal-Am's decision to "pull its financing and support from the project" and in the PUC's decision to allow Cal-Am's withdrawal. Ag Land Trust further argued that "[b]oth the Cal Am decision and the [PUC] decision contributed to the modification in Marina Coast's behavior to its current position: Marina Coast will not build the project." Ag Land Trust contended that its litigation thus " 'contributed in a significant way' to rendering the Regional Project 'defunct' and Marina Coast's allegedly defective EIR [unusable]."
J. The Trial Court's July 14 , 2016 Order
The trial court granted Ag Land Trust's motion for attorney's fees in a July 14, 2016 order after hearing. Regarding the first element of the catalyst theory, the court determined that Ag Land Trust's lawsuit was "a material factor in achieving the primary objective sought in this litigation - stopping Marina Coast from building the Regional Desalination Project based on [the challenged] EIR." The court believed that although Ag Land Trust's prayer for relief sought to set aside Marina Coast's approval of the project, that request was made "to effectuate the greater objective of stopping the Regional Project from being built." The court also found that Ag Land Trust "established a causal connection between this lawsuit and the obstacles created by this lawsuit that led to Marina Coast's decision to abandon the Regional Project." Specifically, the court referred to the PUC decision which showed that "the rulings of this litigation were significant grounds for permitting Cal Am to withdraw from the Regional Project." The court found that, "[b]ecause of Cal Am's withdrawal of its support from the Regional Project, Marina Coast could not and will not proceed with the Regional Project based on the EIR at issue."
Regarding the second and third elements, the trial court found that Ag Land Trust's petition was not frivolous, unreasonable, or groundless, and that Ag Land Trust engaged in sufficient prelitigation settlement efforts.
Upon determining that Ag Land Trust met the elements of the catalyst theory, the trial court "reinstate[d]" the remaining portions of its February 6, 2013 order on Ag Land Trust's first attorney's fee motion, in which the court determined that Ag Land Trust met the other elements for a fee award under section 1021.5. The reinstated findings included that Ag Land Trust's litigation conferred a significant benefit on the public and a large class of persons, and that the necessity and financial burden of private enforcement made a fee award appropriate. The court awarded Ag Land Trust attorney's fees in the amount of $1,285,510.90, and indicated that Ag Land Trust was entitled to seek attorney's fees for services subsequent to the hearing on the first fee motion.
Marina Coast appealed from the July 2016 order awarding attorney's fees.
III. DISCUSSION
Marina Coast contends that the trial court erred in its award of attorney's fees because: (1) the trial court lacked subject matter jurisdiction over Ag Land Trust's action, (2) Ag Land Trust did not satisfy any element of the catalyst theory for an award of attorney's fees under section 1021.5, (3) Ag Land Trust did not meet the other criteria for an award of attorney's fees under section 1021.5, (4) the court improperly relied on its prior findings regarding Ag Land Trust's first motion for attorney's fees, (5) the amount of the award was an abuse of discretion as to the lodestar amount and the multiplier, and (6) the court improperly permitted Ag Land Trust to seek attorney's fees incurred in connection with the prior appeals.
In response, Ag Land Trust contends: (1) the trial court had subject matter jurisdiction over this action and this court impliedly made such a determination in the prior appeals, (2) the trial court properly followed this court's direction on remand to consider the catalyst theory and properly reinstated other findings, (3) Ag Land Trust met all the elements of the catalyst theory, (4) Marina Coast failed to preserve a challenge to the other elements of a section 1021.5 fee award, the lodestar amount, or the multiplier, and (5) the court did not err in permitting Ag Land Trust to file a motion seeking additional attorney's fees.
We will first address the issue of whether Ag Land Trust satisfied the first element of the catalyst theory, that is, whether its lawsuit was a catalyst motivating Marina Coast to provide the primary relief sought. Because we find that issue dispositive, we do not reach the remaining issues.
A. Standard of Review
An order awarding attorney's fees under section 1021.5 is generally reviewed for abuse of discretion. (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175.) However, where, as here, the material facts are undisputed and the question is whether the criteria for an award of attorney's fees have been satisfied, the issue involves statutory construction and a question of law, which we review de novo. (Id. at pp. 1175-1176.)
B. Section 1021.5
Section 1021.5 is an "important exception to the American rule that litigants are to bear their own attorney fees." (Graham, supra, 34 Cal.4th at p. 565.) Under section 1021.5, attorney's fees may be awarded to a "successful party against one or more opposing parties" in any action that "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."
" 'The Legislature adopted section 1021.5 as a codification of the private attorney general doctrine of attorney fees developed in prior judicial decisions. . . . [T]he private attorney general 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 fees, private actions to enforce such important public policies will as a practical matter frequently be infeasible." Thus, the fundamental objective of the doctrine is to encourage suits enforcing important public policies by providing substantial attorney fees to successful litigants in such cases.' [Citation.]" (Graham, supra, 34 Cal.4th at p. 565.)
C. "Successful Party" Based on the Catalyst Theory
As we have set forth above, section 1021.5 allows for an award of attorney's fees to a "successful party" against an opposing party under specified conditions. The California Supreme Court has "taken a broad, pragmatic view of what constitutes a 'successful party' " under section 1021.5 in order to effectuate the objective of encouraging suits that enforce important public policies. (Graham, supra, 34 Cal.4th at p. 565.) Under this view, " 'an attorney fee award may be justified even when plaintiff's legal action does not result in a favorable final judgment. . . . In determining whether a plaintiff is a successful party for purposes of section 1021.5, "[t]he critical fact is the impact of the action, not the manner of its resolution." [Citation.] [¶] The trial court in its discretion "must realistically assess the litigation and determine, from a practical perspective, whether or not the action served to vindicate an important right so as to justify an attorney fee award" under section 1021.5. [Citation.]' " (Id. at pp. 565-566.)
"Under the catalyst theory, attorney fees may be awarded even when litigation does not result in a judicial resolution if the defendant changes its behavior substantially because of, and in the manner sought by, the litigation." (Graham, supra, 34 Cal.4th at p. 560.) "The catalyst theory is an application of the . . . principle that courts look to the practical impact of the public interest litigation in order to determine whether the party was successful, and therefore potentially eligible for attorney fees." (Id. at p. 566.) "The principle upon which the [catalyst] theory is based—that we look to the 'impact of the action, not its manner of resolution' [citation]—is fully consistent with the purpose of section 1021.5: to financially reward attorneys who successfully prosecute cases in the public interest, and thereby ' "prevent worthy claimants from being silenced or stifled because of a lack of legal resources." ' [Citation.]" (Id. at p. 568.)
To constitute a "successful party" (§ 1021.5) under the catalyst theory, "a plaintiff must establish that (1) the lawsuit was a catalyst motivating the [defendant] to provide the primary relief sought; (2) that the lawsuit had merit and achieved its catalytic effect by threat of victory, not by dint of nuisance and threat of expense . . . ; and (3) that the [plaintiff] reasonably attempted to settle the litigation prior to filing the lawsuit." (Tipton-Whittingham, supra, 34 Cal.4th at p. 608.)
The first element of the catalyst theory requires the lawsuit to be "a catalyst motivating the [defendant] to provide the primary relief sought" (Tipton-Whittingham, supra, 34 Cal.4th at p. 608), or " ' "activating [the defendant] to modify [its] behavior" ' " (Graham, supra, 34 Cal.4th at p. 567). To make this showing, "a plaintiff must establish ' "the precise factual/legal condition that [it] sought to change or affect." ' " (Graham, supra, at p. 576.) In addition, there must be a "demonstrable causal connection between the [plaintiff's] lawsuit and the [defendant's] action." (Id. at p. 568.) To satisfy this causation requirement, "the plaintiff need not show that litigation was the only cause of the defendant's acquiescence, only that it was a substantial factor contributing to the defendant's action. [Citations.]" (Coalition for a Sustainable Future in Yucaipa v. City of Yucaipa (2015) 238 Cal.App.4th 513, 522, italics omitted (Yucaipa); Graham, supra, at p. 560 [the defendant must change its behavior "substantially because of" the litigation].) "If plaintiff's lawsuit 'induced' defendant's response or was a 'material factor' or 'contributed in a significant way' to the result achieved then plaintiff has shown the necessary causal connection. [Citations.] The question of whether plaintiff's action is causally linked to achieving the relief obtained is a question of fact. [Citation.]" (Californians for Responsible Toxics Management v. Kizer (1989) 211 Cal.App.3d 961, 967 (Californians for Responsible Toxics Management).)
D. Analysis
To show that Ag Land Trust's lawsuit was "a catalyst motivating the [defendant] to provide the primary relief sought" (Tipton-Whittingham, supra, 34 Cal.4th at p. 608), Ag Land Trust must first establish " ' "the precise factual/legal condition that [it] sought to change or affect" ' " (Graham, supra, 34 Cal.4th at p. 576). The parties dispute whether the primary relief sought by Ag Land Trust was (a) to specifically require Marina Coast to set aside its approval of the Regional Desalination Project, prepare a legally adequate EIR, and otherwise comply with CEQA, or (b) to simply stop Marina Coast altogether from proceeding with the Regional Desalination Project based on the challenged EIR. The trial court found that Ag Land Trust's primary litigation objective was the latter, that is, to stop Marina Coast from building the Regional Desalination Project based on the challenged EIR.
We determine that Ag Land Trust failed to establish that its "lawsuit was a catalyst motivating [Marina Coast] to provide the primary relief sought." (Tipton-Whittingham, supra, 34 Cal.4th at p. 608; see Graham, supra, 34 Cal.4th at p. 567.)
First, to the extent the primary relief sought by Ag Land Trust, as set forth in the prayer for relief in its petition for writ of mandate, was to require Marina Coast to set aside its approval of the Regional Desalination Project and prepare a new EIR for the project in compliance with CEQA, there was no evidence that Marina Coast had undertaken any of these actions.
Second, to the extent the primary relief sought by Ag Land Trust was simply to stop Marina Coast from proceeding with the project based on the challenged EIR, the record undisputedly reflects that Marina Coast stopped proceeding with the project because of Cal-Am's withdrawal from the project, rather than due to Ag Land Trust's litigation. Significantly, in moving for attorney's fees under the catalyst theory, Ag Land Trust admitted that the project did not go forward "due to" Cal-Am's withdrawal, and that Cal-Am's withdrawal "prevented Marina Coast from moving forward with the project." Indeed, Ag Land Trust repeatedly described Cal-Am as the "funder" of the project. The trial court accordingly found that, "[b]ecause of Cal Am's withdrawal of its support from the Regional Project, Marina Coast could not and will not proceed with the Regional Project based on the EIR at issue."
Although Cal-Am's withdrawal from the project may have been due, in some part, to Ag Land Trust's litigation (as well as the time pressure Cal-Am was facing to find a feasible project that would comply with an order imposed by the Water Control Board) (see Decision No. 12-07-008, supra, p. *10; see id. at pp. **16-18, 33, 34), the record does not reflect that Marina Coast's cessation of efforts to continue with the project was motivated, activated, caused, or induced, in whole or in substantial part, by Ag Land Trust's litigation. (See Tipton-Whittingham, supra, 34 Cal.4th at p. 608; Graham, supra, 34 Cal.4th at pp. 567, 568; Yucaipa, supra, 238 Cal.App.4th at p. 522; Californians for Responsible Toxics Management, supra, 211 Cal.App.3d at p. 967.) To the contrary, rather than provide any relief sought by Ag Land Trust in its petition for writ of mandate, Marina Coast continually litigated against Ag Land Trust's petition until this court determined that the petition should be dismissed as moot. (See Ag Land Trust I, supra, at p. 2.) Marina Coast also sought to force Cal-Am to continue with the project by seeking an order from the PUC, but the PUC refused to issue such an order. (Decision No. 12-07-008, supra, pp. **19, 35.)
In sum, Ag Land Trust's litigation may have been the catalyst for one participant in the Regional Desalination Project—Cal-Am—to withdraw from the project. Cal-Am, however, was not the defendant in Ag Land Trust's litigation; it was Marina Coast. Moreover, Marina Coast had no control over Cal-Am's decision to withdraw from the project, and Marina Coast even tried to force Cal-Am to continue with the project. Cal-Am's decision to withdraw, however, mooted the litigation between Ag Land Trust and Marina Coast because Marina Coast could no longer move forward with the project. Based on this undisputed record, where Ag Land Trust's litigation against Marina Coast was mooted due to the actions of a third party, Cal-Am, and where Marina Coast continuously defended against the litigation until it was deemed moot—even going so far as to try to force the third party, Cal-Am, to continue with the project—we do not believe that Ag Land Trust has established that its "lawsuit was a catalyst motivating [Marina Coast] to provide the primary relief sought" (Tipton-Whittingham, supra, 34 Cal.4th at p. 608) and that Ag Land Trust may properly be characterized as a "successful party" over Marina Coast within the meaning of section 1021.5, such that Marina Coast may be required to pay Ag Land Trust's attorney's fees of more than $1 million. If Ag Land Trust was determined to be a successful party under these circumstances, it would mean that Ag Land Trust's attorney's fees would be shifted to Marina Coast, contrary to the general American rule that a party bears its own fees, because of the actions of a third party (Cal-Am), even though Marina Coast had no control over the third party Cal-Am and continuously sought to defend against the merits of the action by Ag Land Trust.
We therefore conclude that Ag Land Trust failed to establish the first element of the catalyst theory requiring that the lawsuit be "a catalyst motivating the [defendant] to provide the primary relief sought" (Tipton-Whittingham, supra, 34 Cal.4th at p. 608), or " ' 'activating [the defendant] to modify [its] behavior" ' " (Graham, supra, 34 Cal.4th at p. 567). Accordingly, the trial court erred in awarding attorney's fees to Ag Land Trust in the amount of $1,285,510.90 under section 1021.5 based on the catalyst theory.
Marina Coast also contends that the trial court's second fee order was erroneous because the order permits Ag Land Trust to seek attorney's fees for services rendered in connection with the two prior appeals in which Ag Land Trust did not prevail.
Ag Land Trust responds that (a) the trial court's second fee order simply allows Ag Land Trust to bring a motion for fees that were not sought in the first motion for fees, (b) the order does not determine Ag Land Trust is entitled to recover any particular fees or the amount of the fees, and (c) Marina Coast previously stipulated to an order allowing a future fee motion.
In the second attorney's fee order of July 14, 2016, after determining that Ag Land Trust was entitled to attorney's fees under the catalyst theory, the court stated that Ag Land Trust "is entitled to seek fees for services in the appellate courts and trial court subsequent to the [first] fee motion hearing on December 14, 2012, because those services were not part of the [first] fee motion before the [trial court]" and "were not part of the trial court's first fee order of February 6, 2013. This provision in the court's order that Ag Land Trust "is entitled to seek" attorney's fees for other services, but without a determination of the amount of the fees, is not a final determination of the rights of the parties regarding such fees for other services and is therefore not appealable. (P R Burke Corp. v. Victor Valley Wastewater Reclamation Authority (2002) 98 Cal.App.4th 1047, 1053-1055 [an order determining the entitlement to attorney's fees, but not the amount of the fees, is interlocutory and is not appealable].) Indeed, to the extent Ag Land Trust intends to seek further fees, it acknowledges that it would have to file a motion and establish that is entitled to recover fees and establish the amount of the fees. We also observe that the trial court's determination that Ag Land Trust was entitled to additional fees was based on the trial court's finding that Ag Land Trust was a successful party under section 1021.5. As we have explained, however, Ag Land Trust was not a successful party under section 1021.5.
IV. DISPOSITION
The July 14, 2016 order awarding attorney's fees is reversed. The parties shall bear their own costs on appeal.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.