Opinion
A157133
03-16-2020
COAST ACTION GROUP, Plaintiff and Respondent, v. CALIFORNIA STATE BOARD OF FORESTRY AND FIRE PROTECTION, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG17860755)
The California State Board of Forestry and Fire Protection (the Board) appeals the trial court's order partially granting Coast Action Group's (Coast Action) motion for attorney fees pursuant to Code of Civil Procedure section 1021.5.
Undesignated statutory references are to the Code of Civil Procedure. We incorporate by reference our unpublished opinion in the Board's prior appeal, Coast Action Group v. California State Board of Forestry and Fire Protection (Aug. 22, 2019, A155575) (Coast Action Group). --------
We conclude the attorney fee award must be reconsidered in light of the final outcome of the litigation. We reverse the fee award and remand the matter to the trial court for redetermination of Coast Action's entitlement to fees, if any, and the appropriate amount of any such fee award.
FACTUAL AND PROCEDURAL BACKGROUND
The Z'Berg-Nejedly Forest Practice Act of 1973 (Forest Practice Act) (Pub. Resources Code, § 4511, et seq.) regulates timber harvesting operations in California. In 2013, the Legislature amended the Forest Practice Act to authorize nonindustrial landowners to submit a working forest management plan (WFMP) to the Board for approval before harvesting timber. (Stats. 2013, ch. 648, § 1 [enacting §§ 4597-4597.22].) In 2017, the Board approved regulations implementing the statutory provisions (2017 Regulations).
Shortly thereafter, Coast Action filed a petition for writ of mandamus challenging the Board's adoption of the 2017 Regulations. The petition alleged the 2017 Regulations violated the Forest Practice Act, the Administrative Procedure Act (Govt. Code, § 11340 et seq.), and the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.).
The court granted the petition in part, concluding two aspects of the 2017 Regulations violated the Forest Practice Act. The trial court found: (1) the 2017 Regulations permit multiple landowners to submit a single WFMP, but the Forest Practice Act only authorizes one landowner per plan; and (2) the Forest Practice Act requires WFMPs to contain extensive information about erosion control, but the 2017 Regulations fail to require all of the statutorily-mandated erosion control information. The trial court denied Coast Action's other claims.
In August 2018, the court issued an amended judgment (judgment) and peremptory writ of mandate directing the Board to set aside and reconsider the 2017 Regulations in light of the court's decision. The Board appealed.
Effective January 1, 2019, the Legislature passed Senate Bill No. 901. (2017-2018 Reg. Sess.) As relevant here, Senate Bill No. 901 amended the WFMP provisions of the Forest Practice Act. The relevant amendments permitted a WFMP to include multiple working forest landowners up to 10,000 acres of timberland. The amendments also eliminated the requirement that a WFMP include an erosion control implementation plan. Senate Bill No. 901 required the Board to adopt emergency regulations to implement the statutory provisions. The Board promulgated emergency regulations adopting the amendments (2019 Regulations).
Coast Action's Attorney Fee Motion
While the Board's appeal was pending, Coast Action moved for $277,295 in attorney's fees under section 1021.5. Coast Action argued it was the prevailing party pursuant to the judgment, that the litigation enforced important rights and conferred a significant public benefit, and that a fee award was necessary and appropriate.
In opposition, the Board argued Coast Action was not a prevailing party because Senate Bill No. 901 amended the Forest Practice Act and "nullified" the judgment. According to the Board, after the change in the law, the "entire basis" for the "order granting the writ [was] no longer valid." In reply, Coast Action claimed it was a prevailing party notwithstanding Senate Bill No. 901. Coast Action also suggested its lawsuit prompted the Legislature to enact Senate Bill No. 901.
At the hearing on the motion, counsel for the Board argued Coast Action was not a prevailing party after the passage of Senate Bill No. 901. The court declined to opine on the effect of Senate Bill No. 901, but noted: "[s]hould the Court of Appeal come to the conclusion that it's moot because of legislation, perhaps that will change things."
On March 15, 2019, the court partially granted the motion, awarding Coast Action $265,783.90 in attorney fees.
Prior Appeal
In an unpublished August 2019 opinion, this court determined Coast Action's claims regarding the 2017 Regulations were moot. We explained: "as a result of the 2019 Regulations, the challenged portions of the 2017 Regulations—the provisions defining who can file a [WFMP] and setting forth the information on erosion control required to be included in such a plan—have been amended and are no longer in effect. The petition does not challenge the 2019 Regulations and the validity of the 2019 Regulations is not before us. The appealed claims are therefore moot."
We declined Coast Action's request to remand to the trial court to determine whether to modify the writ. We concluded there was no basis to leave the writ of mandate in place, and nothing for the trial court to determine in the first instance. Instead, we reversed and remanded with directions to the trial court to dismiss as moot Coast Action's claims that the 2017 Regulations violated the Forest Practice Act with respect to the number of working forest landowners who could join a single WFMP and the erosion control information required to be included in a WFMP, and to enter judgment denying the petition's remaining claims.
In December 2019, the trial court issued a second amended judgment (1) vacating the judgment and peremptory writ of mandate; (2) dismissing Coast Action's claims regarding the Forest Practice Act as moot; and (3) denying the remainder of Coast Action's writ petition.
DISCUSSION
"Section 1021.5 authorizes a court to award attorney fees to a 'successful party' when the action resulted in the enforcement of an important right affecting the public interest, a significant benefit has been conferred, and the necessity of private enforcement makes the award appropriate." (National Parks & Conservation Assn. v. County of Riverside (2000) 81 Cal.App.4th 234, 238-239.) "A necessary prerequisite to recovery under . . . section 1021.5 is the status of prevailing party." (Miller v. California Com. on Status of Women (1985) 176 Cal.App.3d 454, 457.)
Ordinarily, we review an award of section 1021.5 attorney fees for abuse of discretion. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 578.) But here, the trial court based the fee award on Coast Action's success in obtaining the judgment—a judgment that has been vacated. Thus, "the factual predicate for the trial court's award . . . is no longer valid." (Estrada v. FedEx Ground Package System, Inc. (2007) 154 Cal.App.4th 1, 17.) " '[P]rocedural success during the course of litigation is insufficient to justify attorneys' fees where the ruling is later vacated.' " (Kimble v. Board of Education (1987) 192 Cal.App.3d 1423, 1431.)
The trial court has not considered whether Coast Action is a prevailing party in light of the final outcome of the litigation. "Thus, we are not reviewing the court's exercise of discretion. Instead, we must determine whether there is any factual basis for a court to find [Coast Action] was a prevailing party . . . . If there is, we must remand to permit the court to exercise its discretion. [Citation.] If there is not, we must reverse the order." (National Parks & Conservation Assn. v. County of Riverside, supra, 81 Cal.App.4th at p. 239.)
In light of the second amended judgment dismissing two of Coast Action's claims and denying the remainder of the writ petition, we agree with the Board that Coast Action failed to obtain judicially sanctioned relief in the litigation. (See National Parks & Conservation Assn. v. County of Riverside, supra, 81 Cal.App.4th at p. 238.) But we can conceive of a factual basis for recovery under "a 'catalyst theory' which permits a trial court to award fees under section 1021.5 . . . if the defendant changes its behavior substantially because of, and in the manner sought by, the litigation." (Sweetwater Union High School Dist. v. Julian Union Elementary School Dist. (2019) 36 Cal.App.5th 970, 985.)
Under the catalyst theory, a plaintiff may be considered a prevailing party when it achieves its litigation objectives, even when it succeeds " 'by means of [the] defendant's "voluntary" change in conduct in response to the litigation,' rather than by means of a final judgment. [Citation.] To constitute a successful party 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.' " (Sweetwater Union High School Dist. v. Julian Union Elementary School Dist., supra, 36 Cal.App.5th at p. 986.)
The parties urge us to decide whether Coast Action was "successful" for purposes of section 1021.5. We are mindful of the time and expense associated with a remand and further fee litigation, but we will not decide this issue in the first instance. The trial court is in the best position to determine whether Coast Action is entitled to statutory attorney fees after considering the catalyst theory in light of the ultimate result of this litigation. (Environmental Protection Information Center v. Department of Forestry & Fire Protection (2010) 190 Cal.App.4th 217, 228 [after partial reversal, remanding for the court to reconsider fee award "in light of the appellate proceedings" and declining to consider, "in the first instance," whether party was successful]; Graham v. DaimlerChrysler Corp., supra, 34 Cal.4th at p. 577 [remanding for determination of entitlement to attorney fees under catalyst rule].)
We express no opinion on whether Coast Action is a successful party under a catalyst theory, only that the court should exercise its discretion on that issue. We decline to address the other statutory criteria for the fee award because the Board does not address them in its opening brief. (Parisi v. Mazzaferro (2016) 5 Cal.App.5th 1219, 1226, fn. 10 [declining to address undeveloped arguments, unsupported by authority, not set out under separate headings].)
DISPOSITION
The March 15, 2019 order awarding attorney fees is reversed, and the matter is remanded with directions to redetermine Coast Action's entitlement to section 1021.5 attorney fees, if any, and the appropriate amount of any fee award. The Board is entitled to costs on appeal. (Cal. Rules of Court, rules 8.278(a)(2), (a)(5).)
/s/_________
Jones, P. J. WE CONCUR: /s/_________
Simons, J. /s/_________
Needham, J.