Opinion
NOT TO BE PUBLISHED
APPEALS from a judgment and an order of the Superior Court of Los Angeles County No. BS1042170, Daniel Solis Pratt, Judge.
Rockard J. Delgadillo, City Attorney, Susan D. Pfann, Assistant City Attorney, Mary J. Decker and Amy Brothers, Deputy City Attorneys for Defendants and Appellants City of Los Angeles and City Council of the City of Los Angeles.
Weston, Benshoof, Rochefort, Rubalcava & Maccuish, Nicki Carlsen and Shiraz D. Tangri for Real Party in Interest and Appellant Bevcon 1, LLC.
John B. Murdock for Plaintiff and Respondent.
TURNER, P. J.
Defendant, the City of Los Angeles (the city), and real party in interest, Bevcon 1, LLC (the developer), appeal from a judgment issuing a writ of mandate. The writ of mandate directed the city to set aside a mitigated negative declaration and make no approvals of the Beverly Connection Project (the project) until such time as a full environmental impact report had been certified. The writ of mandate was obtained by plaintiff, Beverly Wilshire Homes Association. The trial court also enjoined the developer from any further activities which depend on the mitigated negative declaration until an environmental impact report had been certified. The developer and the city also appeal from a Code of Civil Procedure section 1021.5 attorney fee order.
On July 1, 2008, plaintiff and the developer advised us they had entered into a settlement agreement as to the project. Plaintiff and the developer further advised us they had agreed to take whatever steps necessary to process the settlement. The parties attached the settlement agreement to a request to stay the proceedings for 10 months to implement the terms of the settlement agreement. The settlement agreement provides, among other things: the developer would seek approval from the city to allow construction and operation of a Revised Beverly Connection Project; the revised project is a reduction from the Beverly Connection Project previously approved by the city; due to the reduction, the revised project will not produce substantial unmitigated adverse environmental impacts and the mitigated negative declaration constitutes the necessary environmental review required by California Environmental Quality Act; the developer will pay attorney fees and costs to plaintiff pursuant to paragraph 4; plaintiff will take steps necessary to obtain a dismissal of the underlying petition and all related appeals after payment of attorneys fees and costs as set forth in paragraph 4(b); and the parties waived all attorney fees and costs claims against each other and any other party related to the pending litigation.
On July 2, 2008, we respectfully rejected the stipulation to stay the proceedings for 10 months. (Pub. Resources Code, § 21167.1, subd. (a).) However, upon review of the record, we requested the parties to brief the issue of whether the appeals are moot in that the parties have reached a settlement agreement concerning the project and the attorney fee issue. An appeal is moot when it is not possible for the appellate court to grant appellant any effectual relief. (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541; Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 132, 134; Ebensteiner Co., Inc. v. Chadmar Group (2006) 143 Cal.App.4th 1174, 1178-1179.) One event causing an appeal to become moot is when the parties reach a settlement which resolves the dispute between the parties while an appeal is pending. (Id. at pp. 1178-1181; Muccianti v. Willow Creek Care Center (2003) 108 Cal.App.4th 13, 24; County of Fresno v. Shelton (1998) 66 Cal.App.4th 996, 1005.) An appellate court may nevertheless exercise discretion to review a matter on the merits if: it poses an issue of broad public interest that is likely to recur (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 747; Friends of Cuyamaca Valley v. Lake Cuyamaca Recreation and Park Dist. (1994) 28 Cal.App.4th 419, 425); when there may be a recurrence of the issues between the parties (Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479-480; Grier v. Alameda-Contra Costa Transit Dist. (1976) 55 Cal.App.3d 325, 330); or material factual questions remain for the court’s determination. (In re William M. (1970) 3 Cal.3d 16, 23; Giles v. Horn (2002) 100 Cal.App.4th 206, 228.)
In this case, plaintiff and the developer have reached an agreement as to the project. The question of the mitigated negative declaration and compliance with California Environmental Quality Act were at issue. These matters are no longer at issue between these parties. Furthermore, plaintiff and the developer have reached an agreement as to the payment of attorney fees and costs associated with this litigation. Moreover, plaintiff agreed to obtain a dismissal of the underlying action and associated appeals after payment of the attorney fees pursuant to paragraph 4 of the settlement agreement. There is nothing remaining to be resolved as to the project. There are no exceptions to controlling mootness rules as to the underlying petition. (Morehart v. County of Santa Barbara, supra, 7 Cal.4th at p. 747; Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga, supra, 82 Cal.App.4th at pp. 479-480; Giles v. Horn, supra, 100 Cal.App.4th at p. 228.).
The appeals are dismissed. Each side to bear their own costs on appeal.
We concur: MOSK, J., KRIEGLER, J.