Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07CS01345
HULL, J.When real party in interest John Saca (Saca) sought to build a two-story, 46-foot-high house, plaintiff Save Arden-Oaks (a neighborhood association) asserted these plans violated zoning ordinances that limited building height to 30 feet. Under these ordinances, plaintiff argued, Saca would have to obtain a use permit or variance to proceed with his project. Litigation ensued, with plaintiff seeking both a writ of mandate and declaratory relief. The trial court agreed with plaintiff’s interpretation of the ordinances and granted the requested relief, but it refused to award plaintiff attorney fees.
Saca appeals, contending that the court (1) erroneously refused to consider an amicus brief and (2) misinterpreted the zoning ordinances. Plaintiff also appeals, asserting that the trial court erred in denying its request for attorney fees.
We affirm the judgment but reverse the court’s order on attorney fees and remand for further proceedings. (Code Civ. Proc., § 1021.5 (hereafter § 1021.5.)
Zoning Code of Sacramento County
In order to put the facts in proper context, we first outline the relevant provisions of the Zoning Code of Sacramento County. (All code sections that follow and references to “the Code” are to the Zoning Code of Sacramento County unless otherwise indicated; references to “County” are to Sacramento County.)
Section 305-04 outlines the general height regulations for single family homes and provides that no such structure “shall have a maximum height greater than thirty (30) feet from the finished grade of the property, and shall not exceed two (2) stories in height, except that, in [specified circumstances], the height from grade may be increased to a maximum of forty (40) feet, two and a half (2.5), or three (3) stories.” “The height provision for buildings or structures shall be interpreted so that both the limitation as to the number of stories and the limitation of the height in feet apply.” (§ 301-23.)
The zoning ordinances allow modifications of these standards in a “neighborhood preservation area” (NPA). Section 235-80 explains this designation as a recognition that “some areas of the County, due to their unique social, architectural, environmental or other characteristics, require special regulations not found in the basic Land Use Zones, in order to protect and preserve existing neighborhood characteristics. It is the intent of this Article to provide a means by which regulations may be provided to supplement or modify the provisions in the basic Land Use Zones as necessary to preserve existing unique characteristics.”
Section 235-82 further provides: “An (NPA) Zone shall be established by ordinance, which shall specify and describe the area to be subjected to the regulations contained therein. Said ordinance may specify yard areas, lot area, lot width, public street frontage requirements, height limitations, or other development standards to be applied within the district in lieu of the requirements contained in the zone or zones with which the (NPA) Zone is combined, or contained in Title III of this Code. To the extent that such standards are not specified in said ordinance, or to the extent that such requirements and standards are not inconsistent with those contained in the zone or zones with which the (NPA) Zone is combined or contained elsewhere in the Code, the standards and requirements contained in the underlying zone or zones and elsewhere [in] this Code shall apply.” (Italics added.)
The County adopted an ordinance establishing the Arden Oaks NPA “to preserve and protect the existing single family residential estate atmosphere of the property..., to preserve the unique social, architectural and environmental characteristics of the Arden Oaks area, and to prevent further encroachment of commercial uses in the area.” (§ 531-10.) In its findings, the County described Arden Oaks as a “unique area of winding streets and large wide lots and a spacious estate-type atmosphere.” (§ 531-15(a).) It also found that “[i]t is in the best interests of the residents of Arden Oaks and the County of Sacramento that the character of the existing single family residential neighborhood be preserved, protected and maintained, and that therefore development not consistent with this NPA is incompatible with the character of the area and the needs of the people of the County of Sacramento.” (§ 531-15(d).)
The NPA included a number of development standards, which the County determined to be reasonable since “the majority of the existing lots in this area meet [these] requirements....” (§ 531-15(c).) The standards included wide lots “to prevent lot splits and preserve the unique characteristics of the neighborhood.” (§ 531-15(a), see also § 531-11(b).) The development standards also specified that “[n]o structures shall exceed two (2) stories in height” (§ 531-11(c)), thereby eliminating the possibility of a 2-1/2 or 3 story home as would be permitted in certain circumstances under the general zoning code provisions. (§ 305-04.) These NPA standards, “as well as any additional standards” applicable to the area, governed development in the Arden Oaks NPA. (§ 531-11.)
As we describe in detail in this opinion, the central question is whether, in the absence of a specified height limitation in the NPA ordinance, there is nonetheless a height limitation established by the Code’s general 30-foot height requirement.
Facts and Proceedings
Saca acquired two lots on Ladino Road in the Arden Oaks neighborhood and submitted plans for building a large house on the lots. The neoclassical design featured two-stories and had a height of 46 feet. The house apparently exceeded 30, 000 square feet in size.
Around the same time, the Arden Oaks Neighborhood Association held a meeting to discuss 10 proposed amendments to the NPA ordinance, including a proposal to amend the NPA to limit building height to 30 feet. In an advisory measure, residents voted in favor of seven of the proposals, with the height limitation proposal passing on a 160-154 vote. However, no further steps were taken to amend the NPA.
In reviewing Saca’s plans, County Counsel issued an opinion that the only restriction that applied to Saca’s home was the two-story height limitation specifically mentioned in the Arden Oaks NPA. The neighborhood association challenged that conclusion, asserting that the Code’s general 30-foot height restriction applied with equal force to the Arden Oaks NPA.
County Counsel issued a new opinion agreeing with that conclusion. He stated, “Read alone, the NPA would allow a two-story residence to be constructed above a height of 30 feet. The NPA itself includes no specific numerical height limitation and, consequently, would permit homes to be constructed up to heights of 50, 60, 70 feet or higher. The Zoning Code should not be construed to allow an absurd result. Thus, where the NPA is silent, the provisions of Zoning Code section 305-04 must be relied upon to provide some reasonable regulation of residential building height.”
The County Planning Department placed a hold on any building permit for the Saca residence until Saca revised the plans to reduce the building’s height to meet the 30-foot height restriction or, alternatively, until Saca received a conditional use permit for a height up to 40 feet, or received a variance for a height more than 40 feet.
Saca appealed this decision to the County Board of Zoning Appeals (the Board), characterizing the issue as centering on the proper interpretation of section 531-11(c), the NPA ordinance limiting homes in Arden Oaks to two stories. Some residents from the neighborhood spoke in favor of applying the general 30-foot restriction and others spoke against it. Some noted that neighbors were not seeking to prevent Saca from constructing his house but instead only wanted to see existing ordinances properly enforced. They argued that these ordinances required Saca to go through the variance process in order to build a house of this height.
Some of the testimony at the hearing focused on whether other houses in Arden Oaks exceeded 30 feet in height. No one presented a definitive answer to that question.
The Board unanimously granted Saca’s appeal, concluding that the NPA contained no height restriction other than the specified two-story limitation.
Plaintiff filed a petition for mandate and complaint for declaratory relief. The court granted the requested relief. It stated that all parties agreed that “the issue presented by this matter is strictly one of law involving the interpretation of a local ordinance.”
The court concluded that the Board’s decision did not reflect a long-standing interpretation of the zoning ordinances that warranted particular deference. The court noted that evidence of existing houses over 30 feet tall in Arden Oaks consisted of photographs and testimony from residents and others, but that no specific count or measurements had been established. The court found that “some (uncertain) number of houses exists in the Arden Oaks neighborhood that exceed 30 feet in height, and that it is more likely than not that at least some of these houses were approved by County Planning Department staff without applying the 30-foot height limit contained in the County Zoning Code.” However, the court concluded, this evidence “establishes that it is more likely than not that County Planning Department staff, in approving such houses, simply disregarded the 30-foot height limit contained in the County Zoning Code rather than making a reasoned and considered decision that such limit did not apply.... Thus, although the evidence does tend to suggest that there may have been a practice that was followed by the County Planning Department staff with regard to the Arden Oaks neighborhood, the evidence does not establish that such practice was the result of an actual consistent and long-standing interpretation of the applicable ordinances in the manner the County and [Saca] contend.”
Reviewing the relevant ordinances, the court concluded that the Board’s interpretation of the Code was “clearly erroneous.” The court found that under the clear and unambiguous language of the ordinances, the general 30-foot height requirement applied to the Arden Oaks NPA. The court observed that when the Board wanted to permit a height limitation in excess of 30 feet, it knew how to do so, as evidenced by ordinances for other NPAs that specified a greater allowable height.
The court granted the writ of mandate and issued declaratory relief, ruling that the Board’s decision granting Saca’s appeal was “clearly erroneous and void under applicable provisions of the County Zoning Code; that the applicable provisions of the County Zoning Code provide that buildings and structures within the boundaries of the Arden Oaks [NPA] may not exceed 30 feet in height, measured as provided in the Code, unless a building permit applicant receives a conditional use permit to permit a maximum height of 40 feet, or unless the building permit applicant receives a variance from the [County] Board of Supervisors; and that... County may not issue a building permit to... Saca to construct his proposed residence unless the residence complies with the 30-foot height limit when measured as provided in the Code, or unless he receives a conditional use permit or variance.”
Plaintiff subsequently filed a motion for attorney fees under section 1021.5, which the trial court denied for reasons explained later in this opinion.
Saca appeals, challenging both the judgment and the court’s refusal to consider an amicus brief filed without permission of the court. Plaintiff also appeals, asserting the court erred in refusing to award attorney fees.
Discussion
I
Amicus Brief
An unincorporated association, Residents of Arden Oaks, filed an amicus brief in the trial court in support of Saca in order to “draw [the court’s] attention to the disingenuous nature of [plaintiff’s] briefing in this matter and [its] erroneous statements of fact and conclusions of law.” Plaintiff opposed this filing, asserting that Residents of Arden Oaks failed to comply with procedures governing amicus briefs, raised no new or relevant issues, and included inadmissible declarations in support of its brief.
In its ultimate ruling on plaintiff’s petition for writ of mandate, the trial court commented that it had disregarded the amicus brief because “[n]o applications for leave to file an amicus brief in this matter have been made on behalf of any person or entity, including ‘Residents of Arden Oaks, ’ and the Court has not granted this or any other person or entity such leave.”
Saca contends this ruling was erroneous because leave to file amicus briefs is required only in the appellate courts. We disagree.
While the California Rules of Court describe procedures for filing an amicus brief in the appellate court (Cal. Rules of Court, rule 8.200(c)), there are no similar provisions for filings in the trial court. However, a trial court retains the inherent authority to “provide for the orderly conduct of proceedings before it.” (Code Civ. Proc. § 128, subd. (a)(3); see also Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967; Jeld-Wen, Inc. v. Superior Court (2007) 146 Cal.App.4th 536, 542.) An application for leave to file an amicus brief is one such mechanism. It is not difficult to imagine the chaos that might ensue if any person or entity could file a brief in a case to which it is not a party without first obtaining the court’s permission.
Although amicus briefs are not commonly filed at the trial level, cases demonstrate that parties seek permission before doing so and courts have assumed that such an application is required. (See, e.g., Ramon v. County of Santa Clara (2009) 173 Cal.App.4th 915, 922; In re Veterans’ Industries, Inc. (1970) 8 Cal.App.3d 902, 924.) For example, in McFarland v. City of Sausalito (1990) 218 Cal.App.3d 909, appellant was dismissed from a lawsuit but nonetheless continued to file pleadings in the litigation while his appeal was pending. (Id. at p. 911.) In affirming sanctions imposed by the trial court, the appellate court noted that appellant could not simply “inject himself back into proceedings from which he had been dismissed” (id. at pp. 912-913), but instead had other available alternatives, including taking “the unusual step of requesting the trial court to permit him to file an amicus brief.” (Id. at p. 912.)
Saca provides no authority to support his claim that a nonparty may file an amicus brief in the trial court without first obtaining permission of the court. In fact, as noted, the authority that exists suggests otherwise. The trial court acted well within its discretion in refusing to consider an amicus brief filed without permission.
II
Zoning Ordinance Height Restrictions
Saca contends that the court erred in construing zoning ordinances as limiting residential height in the Arden Oaks NPA to 30 feet. We disagree.
Like the interpretation of a statute, the interpretation of an ordinance is subject to de novo review. (Stolman v. City of Los Angeles (2003) 114 Cal.App.4th 916, 928.) To determine legislative intent, we first examine the words of the ordinance. If it is clear and unambiguous, no further judicial construction is required and the plain meaning of the ordinance governs. (Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1214.)
As we have outlined, an NPA zone may establish standards that vary from the Code’s basic development requirements in order to preserve the NPA’s unique characteristics. However, under section 235-82, “[t]o the extent that such standards are not specified in said ordinance, or to the extent that such requirements and standards are not inconsistent with those contained in the zone or zones with which the (NPA) Zone is combined or contained elsewhere in the Code, the standards and requirements contained in the underlying zone or zones and elsewhere [in] this Code shall apply.”
The Code specifies that single family homes are limited to 30 feet in height and two stories, although under certain circumstances, the height may be increased to 40 feet and 2-1/2 or 3 stories. (§ 305-04.) It further specifies that building height restrictions must be interpreted “so that both the limitation as to the number of stories and the limitation of the height in feet apply.” (§ 301-23.)
The Arden Oaks NPA ordinance establishes a two-story limitation (without any exception allowing for 2-1/2 or 3 stories) but does not specify any height restriction in feet. (§ 531-11.) Saca contends that this silence must be construed as an intent to permit any two-story residence, regardless of height, subject only to Building Code limitations. He notes that other homes in the Arden Oaks NPA exceed 30 feet in height and that the County issued permits for their construction. He also asserts that the court failed to give proper deference to interpretations of the zoning ordinances by the Board and County Planning Department (Department). These claims are unpersuasive.
Initially, we note that the Building Code is irrelevant to these proceedings. “[U]ntil the 1970’s, every city and county in California adopted its own building code, unfettered by mandated state standards or state control. In 1970, the Legislature put an end to this practice by declaring a statewide interest in uniform building codes and by otherwise expressing an intent to preempt the field of setting building code standards. (California Apartment Assn. v. City of Fremont (2002) 97 Cal.App.4th 693, 696-697.) To this end, “[c]ities and counties are required to adopt the Uniform Building Code... and the California Building Standards Code..., except that they may ‘make such changes or modifications in [these] requirements... as it determines... are reasonably necessary because of local climatic geological, or topographical conditions.’” (Leslie v. Superior Court (1999) 73 Cal.App.4th 1042, 1048; see Health & Saf. Code, §§ 17922, 17958, 17958.5; see also Cal. Code Regs., tit. 25, §§ 6, 22.)
The Building Code standards center on safety concerns, and consequently the flexibility afforded to local entities is critical if “conditions exist within its geographical boundaries which create an unreasonable hazard to life or property.” (California Apartment Assn., at p. 701.) For example, in Building Industry Assn. v. City of Livermore (1996) 45 Cal.App.4th 719, a city acted within its authority in adopting standards more stringent than Building Code provisions by requiring builders to install residential fire sprinklers. (Id. at pp. 722-723, 727-728.) Local conditions (which included grasslands and dry, hot, windy summers, and risk of increased demand for fire protection services in the event of an earthquake) made these modified standards necessary to protect public safety. (Id. at pp. 727-728.)
The Building Code’s height limitations depend on the construction material used, again reflecting a concern for public safety. (§ 115-06.) According to the parties, a residence of the type proposed here could be as tall as 65 feet and still assure structural soundness. But this Building Code limitation, setting forth the maximum permissible height of a residence to protect public safety, is irrelevant to the aesthetic concerns governed by the NPA, particularly its desire to preserve a spacious estate neighborhood.
Saca’s contention that silence in the NPA ordinance was intended to permit structures of any height fails to take into account section 235-82, which specifically states that if standards are not specified in the NPA ordinance, the general standards and requirements of the Code apply. Height restrictions apply to both the number of stories and the structure’s height in feet. The NPA ordinance in question specifies only one of these requirements, the two-story limitation, and is silent as to any other height limitations. An overall height limitation is not inconsistent with a limitation on the number of stories, and section 235-82 fills the gap: the 30-foot height restriction of the general zoning code applies to the Arden Oaks NPA.
Because the language of these ordinances is clear and unambiguous, we need not engage in any further statutory interpretation. (Conservatorship of Whitley, supra, 50 Cal.4th at p. 1214.) Nonetheless, we briefly explain why Saca’s remaining claims are meritless.
Saca asserts that the trial court failed to give the proper deference to the Board and Department’s interpretation of the ordinances. There was no error.
“An agency interpretation of the meaning and legal effect of a statute is entitled to consideration and respect by the courts; however, unlike quasi-legislative regulations adopted by an agency to which the Legislature has confided the power to ‘make law, ’ and which, if authorized by the enabling legislation, bind this and other courts as firmly as statutes themselves, the binding power of an agency’s interpretation of a statute or regulation is contextual: Its power to persuade is both circumstantial and dependent on the presence or absence of factors that support the merit of the interpretation.” (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 7.) “Where the meaning and legal effect of a statute is the issue, an agency’s interpretation is one among several tools available to the court. Depending on the context, it may be helpful, enlightening, even convincing. It may sometimes be of little worth. [Citation.] Considered alone and apart from the context and circumstances that produce them, agency interpretations are not binding or necessarily even authoritative. To quote the statement of the Law Revision Commission..., ‘The standard for judicial review of agency interpretation of law is the independent judgment of the court, giving deference to the determination of the agency appropriate to the circumstances of the agency action.’” (Id. at pp. 7-8.)
Little deference is warranted in the present situation. Saca presented no definitive evidence of past County practices. An unspecified number of houses in Arden Oaks allegedly exceeded the 30 foot limitation, but no measurements were presented and there was no discussion of whether any of these owners obtained conditional use permits or variances. As the trial court noted, Saca did not present any evidence of an “official interpretation” by the Department. In fact, at the hearing before the Board, residents described situations in which the neighborhood had worked with homeowners who had been referred by the Department to modify their plans to meet zoning requirements. In short, Saca failed to establish that there was any Departmental interpretation warranting deference.
In support of his claim that the County intended to impose only a two-story limitation without any height restrictions, Saca points to a letter from a former supervisor to that effect. However, the opinion of a single lawmaker does not demonstrate the intent of the body. (Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 928-929.) Moreover, the record establishes that the County knew how to word NPA zoning variations to distinguish them from the general standards. In other NPAs adopted the same day as that of Arden Oaks, the County specified height restrictions that were both greater and less than the general code standards. Had the County meant to do away with any height limit in the Arden Oaks NPA, it could easily have included language to that effect.
Absent express language, there is no basis for inferring such an intent. If no height requirement existed, a homeowner could build up to whatever maximum is permitted under the Building Code (§ 115-06), a result that is at odds with the NPA’s stated desire to preserve a spacious estate neighborhood. There is no basis for equating the County’s silence on height as a tacit endorsement of towering development, particularly given the clear language of section 235-82 that general code provisions apply when NPA standards are unspecified or otherwise not inconsistent.
The trial court properly issued declaratory relief and a writ of mandate to clarify that the 30-foot height limitation of the general zoning code applied to the Arden Oaks NPA, and that Saca could not obtain permits for a taller structure without first obtaining a conditional use permit or variance. (See Horwitz v. City of Los Angeles (2004) 124 Cal.App.4th 1344, 1356.) Saca’s claims to the contrary are unavailing.
III
Attorney Fees
Plaintiff sought attorney fees under the public attorney general statute, section 1021.5. “The statute’s purpose is to encourage public interest litigation that might otherwise be too costly to pursue.” (Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173, 176.) Without a mechanism to recoup attorney fees, private actions to enforce public policies are often untenable. (Conservatorship of Whitley, supra, 50 Cal.4th at p. 1218.) Section 1021.5 is not “so much concerned with what brought a litigant with a potential public interest case into an attorney’s office, but rather with allowing that litigation to move forward from there by offering at least the prospect that the financial burden of the litigation could be shifted to the opposing party if the litigant prevailed.” (Id. at p. 1220.)
Under section 1021.5, a party may be entitled to attorney fees if three conditions are met: “(1) [plaintiff’s] action ‘has resulted in the enforcement of an important right affecting the public interest, ’ (2) ‘a significant benefit, 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.’” (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 935.)
The trial court denied plaintiff’s motion for fees, concluding that plaintiff failed to meet the second and third prongs of this test. On appeal, plaintiff challenges these determinations. We reverse and remand to the trial court for further proceedings.
Courts generally review an award of attorney fees under an abuse of discretion standard. (Conservatorship of Whitley, supra, 50 Cal.4th at p. 1213.) “The trial court is to assess the litigation realistically and determine from a practical perspective whether these criteria have been met.... [¶]... In reviewing the trial court’s decision, we must pay ‘“particular attention to the trial court’s stated reasons in denying or awarding fees and [see] whether it applied the proper standards of law in reaching its decision.”’ [Citation.]” (Families Unafraid to Uphold Rural El Dorado County v. El Dorado County Board of Supervisors (2000) 79 Cal.App.4th 505, 511, overruled on other grounds in Conservatorship of Whitley, supra, 50 Cal.4th at p. 1226, fn. 4.)
As noted, the second requirement for attorney fees under section 1021.5, requires that a significant pecuniary or nonpecuniary benefit be conferred on the general public or a large class of persons. (Woodland Hills Residents Assn., Inc. v. City Council, supra, 23 Cal.3d at p. 935.) In finding that plaintiff did not meet this prerequisite, the court stated, “Although [plaintiff] has argued that the decision in this case affirmed broad public interests involving the application and interpretation of County zoning laws, in reality, and viewed from a practical perspective, the result of this action was much narrower: it simply prohibited a single landowner, in a single neighborhood that is subject to specific rules, from constructing a house in excess of thirty feet in height. There was no indication in the records that any additional landowners, either in this neighborhood or in others which may have similar ordinances, were building or threatening to build homes in excess of the general thirty-foot height limit, such that the Court’s ruling would have any immediate impact beyond the particular individuals, and the specific area, involved here.
“The benefit of this ruling, even if arguably ‘significant’ for those directly involved, thus realistically and practically speaking accrues to a quite limited number of persons, primarily those located close to the proposed residence, who would be most likely to be affected by viewing it, or to have their property values adversely affected by its presence. Even if viewed somewhat more broadly in terms of those in the Arden Oaks neighborhood who supported the concept of the 30-foot height limit for the area, the class of persons benefited by the ruling is limited to the group of approximately 160 individuals residing within the Arden Oaks [NPA] who voted to amend the Neighborhood Preservation Ordinance to impose a 30-foot height restriction. In either case, the limited number of persons benefited by the ruling falls far short of being the ‘general public’ or even a ‘large class of persons’ within the meaning of the statute.”
The trial court’s comments fail to recognize the true nature of its ruling.
First, the fact that no other houses in excess of 30 feet were planned is irrelevant to the question of attorney fees. The court’s order squarely held that under the clear language of the ordinances, general zoning code provisions would fill the void in the NPA ordinance. Barring amendment of the NPA or the general code provisions, the court’s interpretation of the ordinances protects the Arden Oaks neighborhood into the future, preserving its unique character as the NPA intended. This interpretation would be applicable to all current and future residents, benefitting the entire neighborhood, not just the 160 who voted in favor of a height limitation at the neighborhood meeting, and not just those in immediate proximity to Saca’s house. (See California Common Cause v. Duffy (1987) 200 Cal.App.3d 730, 749-750.) In fact, Saca and plaintiff agreed that this case was important because it would apply to all future projects in the NPA.
Moreover, the NPA for Mariemont/Gordon Heights, approved on the same date as the NPA for Arden Oaks, was also silent as to any height limitation. The court’s interpretation of the Arden Oaks ordinance would lend strong support to an argument that the 30-foot height limitation would apply to that NPA as well in the event that issue ever arises. Just as the general code provision limiting residences to 30 feet applied to Arden Oaks because the NPA ordinance did not supply a different height requirement, the 30-foot limitation would, if all other considerations are the same, also be applicable to the Mariemont/Gordon Heights NPA.
Because the trial court mischaracterized the nature of its ruling, it did not engage in the proper analysis of the second prong of the test for attorney fees under section 1021.5.
The same is also true for the analysis of the third requirement for attorney fees under section 1021.5, that “‘the necessity and financial burden of private enforcement are such as to make the award appropriate.’” (Woodland Hills Residents Assn., Inc. v. City Council, supra, 23 Cal.3d at p. 935.)
The trial court ruled, “In this case, viewed, once again, from a realistic and practical perspective, the need to pursue this action was not out of proportion to the stake that [plaintiff], and the individual residents of the Arden Oaks neighborhood upon whose behalf it acted, had in preventing the construction of the residence in question. As set forth in the declarations of individual residents [plaintiff] filed in this action, and in [plaintiff’s] more general arguments as well, those who opposed the construction of the residence, and who wanted a declaration that a 30-foot height limit was applicable to the area, had a strong stake in the matter. This interest was based not only on the general ‘neighborhood’ interest in protecting the aesthetic integrity of the Arden Oaks area, which was frequently referred to in the arguments in support of the petition, but more particularly also on the interests of the immediate neighbors in preventing the adverse impact they alleged that the proposed residence would have on their properties by obstructing their views, light and air. Such interests are far from ‘abstract, ’ and are of sufficient weight to justify denying an award of fees under... section 1021.5. [Citation.] Such interests are also distinguishable from the more general interest in vindicating due process concerns (as opposed to opposing a project on its merits), which was held to support an award of fees under section 1021.5....
“Finally, although the fact that an individual or party has a substantial personal interest in the outcome of a matter does not necessarily preclude a finding that the financial burden of the litigation is out of proportion to the litigant’s personal stake in the matter, such a finding is typically based on evidence demonstrating the nature and consequences of the financial burden. [Citation.] [Plaintiff] has not presented any evidence of that nature to the Court.”
Again, the trial court’s analysis was colored by its characterization of this action as one to prevent one particular homeowner from building one particular house. For the reasons already explained, that characterization was faulty.
The court’s reasoning is problematic for several other reasons as well.
First, the trial court deemed the interests of Saca’s nearby neighbors to be “far from ‘abstract’” and, because they were more “concrete, ” rendered plaintiff ineligible for an attorney fee award. However, in the recent decision of Conservatorship of Whitley, supra, 50 Cal.4th 1206, the California Supreme Court rejected this abstract/concrete dichotomy (id. at pp. 1223-1224) and held that “a litigant’s personal nonpecuniary motives [no matter whether “abstract” or “concrete”] may not be used to disqualify that litigant from obtaining fees under section 1021.5.” (Id. at p. 1211.) “[T]he statutory language focuses on ‘financial burden, ’ not on the nonfinancial motives a litigant may have in bringing the suit.” (Id. at p. 1224.)
The court’s decision placed undue emphasis on the interests of Saca’s immediate neighbors. Plaintiff’s membership was comprised of 100 people residing on 64 different properties throughout Arden Oaks. The organization was designed to preserve the character of the entire Arden Oaks neighborhood; it was not primarily a vehicle for Saca’s immediate neighbors. (See Bowman v. City of Berkeley, supra, 131 Cal.App.4th at p. 182.)
The court erred in suggesting that plaintiff fell short by failing to present evidence of the nature and consequences of the financial burden of bringing this lawsuit. Although the case cited by the court, Mejia v. City of Los Angeles (2007) 156 Cal.App.4th 151, 159, makes passing reference to such facts in discussing the case before it, section 1021.5 does not require any evidence of the precise nature of a party’s financial burden. Rather, the central question is whether a party had an “‘individual stake that was out of proportion to the costs of litigation..., not whether [it was] financially able to bear the costs. Financial status is not the criterion....’” (Cal. Licensed Foresters Assoc. v. State Bd. of Forestry (1994) 30 Cal.App.4th 562, 570, italics omitted.)
Because the court misconstrued the nature of the litigation and its ruling, it did not properly weigh factors to determine whether fees should be awarded under section 1021.5. We must therefore remand for reconsideration of these issues. Depending on the court’s ultimate determination, the court may also have to resolve other issues it explicitly declined to consider or did not reach, namely, whether other criteria under section 1021.5 were met, the validity of objections to a declaration submitted on the issue of fees, whether the fees sought were reasonable, and if ordered, whether a fee award is appropriate against Saca, the Board, or both.
Disposition
The trial court’s judgment is affirmed. The trial court’s order denying plaintiff its attorney fees is reversed and the matter is remanded to the trial court for further consideration. Plaintiff is awarded its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
We concur: RAYE, P. J., NICHOLSON, J.