Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. RG05230715
RIVERA, J.
In an effort to resolve their dispute over the development plans of the University of California, Berkeley (UC Berkeley), the City of Berkeley (the City) and the Regents of the University of California and UC Berkeley (collectively the University) entered into a settlement agreement (SA). Under the SA, the City and the University would work jointly to prepare a plan for the downtown area and an environmental impact report, and the City would act as the lead agency under the California Environmental Quality Act, Public Resources Code section 21000 et seq. (CEQA). Petitioners and plaintiffs Carl Friberg, Anne Wagley, Jim Sharp, and Dean Metzger brought this action for a writ of mandate and declaratory and injunctive relief against the University and various officials of the City of Berkeley, alleging the City had violated CEQA and the California Planning and Zoning law (Gov. Code., § 65000 et seq.), that the City had improperly contracted away its right to exercise its police power, and that the SA divested the City of its independence.
All undesignated statutory references are to the Public Resources Code.
The named respondents and defendants are Tom Bates as Mayor and Councilmember of the City Council of Berkeley; Linda Maio, Darryl Moore, Maxwell Anderson, Laurie Capitelli, and Gordon Wozniak as Councilmembers of the City Council of Berkeley; Phil Kamlarz as City Manager of the City of Berkeley; and Manuela Albuquerque as Attorney of the City of Berkeley. We will refer to these parties collectively as defendants. The petition named as real parties in interest the University.
The first cause of action in the corrected second amended petition alleges violations of CEQA. The second cause of action alleges that the SA is contrary to the City Charter and Municipal Code. The third cause of action alleges a violation of the Municipal Code. The fourth cause of action alleges the SA violates planning and zoning law and the City Charter and Municipal Code. The fifth cause of action alleges the project approvals violate Code of Civil Procedure sections 1085 and 1094.5. The sixth cause of action alleges violation of the Public Records Act (Gov. Code, § 6250 et seq.). Petitioners state in their opening brief that they do not appeal the dismissal of the sixth cause of action. Their contentions on appeal are limited to (1) the cause of action for violation of CEQA; (2) the claim that the City improperly surrendered its land use authority and police power; and (3) the award of attorney fees. We will treat all other issues as abandoned.
The trial court sustained without leave to amend a demurrer to the cause of action for violations of CEQA, on the ground that the settlement agreement was not a project under CEQA and was not subject to CEQA’s requirements for environmental review. On the merits, it denied the petition as to the remaining causes of action. Petitioners contend on appeal that their CEQA cause of action is ripe for review, that the City unlawfully surrendered its land use authority, and that the trial court erred in imposing attorney fees. We reverse the award of attorney fees, and affirm in all other respects.
I. BACKGROUND
The City brought an action against the University in February 2005 (the underlying action), challenging the University’s action in approving the “2020 Long Range Development Plan” and a center for East Asian studies (the LRDP) and certifying an environmental impact report (EIR) for the LRDP. According to the petition in the underlying action, the City provides fire service, sewer, waste water treatment infrastructure, and other services to the campus. The LRDP contemplated increases in the amount of space occupied by the University, as well as in the number of students, faculty, staff, and parking spaces at the University. The City alleged that this growth would further strain City services and degrade the environment, and that the EIR did not adequately analyze and mitigate those impacts, either through environmental mitigation or the payment of fees to alleviate the City’s costs in providing services to the University.
The City and the University engaged in confidential settlement negotiations, resolved the underlying action, and signed the SA in May 2005. Under the SA, the City and the University will participate in a joint planning process for the Downtown Area of Berkeley, defined as the area bounded by: Hearst Avenue, Oxford Street, Dwight Way, and Martin Luther King, Jr. Way. In the SA, the parties agree that, “while maintaining its autonomy as a state institution,” the University will use the Downtown Area Plan (DAP) the parties developed as its guide to locating and designing new projects in the downtown area, and that the DAP will augment the 2020 LRDP and the 2020 LRDP EIR. The SA provides that the City will act as the lead agency under CEQA in preparing the DAP and the EIR for the DAP, and that the Regents reserve their autonomy from local land use regulation. Furthermore: “The City will certify the EIR and adopt the DAP within 48 months of executing the Settlement Agreement,” although the City Manager and the Chancellor may agree to extensions of the deadline. UC Berkeley will make annual payments of $1.2 million to the City for the term of the 2020 LRDP, to be disbursed for various projects, including sewer and storm drain infrastructure projects; fire and emergency equipment, capital improvements, and training; transportation and pedestrian improvement programs, studies, and projects; and projects to benefit city neighborhoods. If the goal of completing the DAP and DAP EIR within 48 months is not met because of the City’s action or inaction not caused by UC Berkeley’s failure to perform under the agreement, then UC Berkeley’s annual payment will be reduced by $180,000 each year, or $15,000 per month, until the EIR is certified and the DAP is adopted.
The SA also provides: “[II.B.] 6. Joint review of DAP and EIR: because the DAP is a Joint Plan, there shall be no release of draft or final DAP or EIR without concurrence by both parties. Concurrence may be withheld in the case of a good faith disagreement regarding land use planning or CEQA issues. Any mitigation measures included in the EIR must be acceptable to UC Berkeley and applicable to all projects in the Downtown Area, regardless of ownership or sponsorship. Each party reserves the right to determine the feasibility of mitigation measures proposed in the DAP EIR and to discuss such feasibility in the DAP EIR, other environmental documents or findings. [¶] 7. UC Berkeley reserves the right to determine if the DAP or EIR meets the Regents’ needs. The basis for making such a determination would be that the DAP or EIR does not accommodate UC Berkeley development in a manner satisfactory to the Regents.” Among the SA’s other provisions, UC Berkeley agreed to construct no more than 2,060 new parking spaces without additional environmental review, provided the City approved a rapid bus route; and the City agreed to dismiss the underlying action with prejudice, not to seek to impose parking taxes on the University during the course of the 2020 LRDP, not to pursue new or additional sewer fees during the same time period, and not to pursue any challenges to certain projects so long as they were consistent with the 2020 LRDP and 2020 LRDP EIR.
II. DISCUSSION
A. Delegation of Police Power
Petitioners contend the SA amounted to an improper surrender of the City’s independent land authority and police power. It is well settled that “[a] local legislative body cannot surrender or impair its delegated governmental power or that of successor legislative bodies either by ordinance or contract. [Citations.] More particularly, a local government may not contract away its right to exercise its police power in the future, and land use regulations involve the exercise of police power.” (Alameda County Land Use Assn. v. City of Hayward (1995) 38 Cal.App.4th 1716, 1724 (Alameda County); see also Santa Margarita Area Residents Together v. San Luis Obispo County Bd. of Supervisors (2000) 84 Cal.App.4th 221, 232-233.) A contract that purports to surrender or impair the police power “is invalid as contrary to public policy if the contract amounts to a municipality’s ‘surrender’ or ‘abnegation’ of its control of a municipal function.” (108 Holdings, Ltd. v. City of Rohnert Park (2006) 136 Cal.App.4th 186, 194 (108 Holdings).) The inquiry into whether a contract violates this rule “turns on whether ‘this crucial control element has been lost.’ ” (Id. at p. 195, quoting County Mobilehome Positive Action Com., Inc. v. County of San Diego (1998) 62 Cal.App.4th 727, 738.) On the other hand, “ ‘[r]eservation of the police power is implicit in all government contracts and private parties take their rights subject to that reservation. [Citations.]’ [Citation.] Thus, courts ‘ “will not read into the contract[] an abrogation of the potential future exercise of the sovereign police power” ’ ” (Richeson v. Helal (2007) 158 Cal.App.4th 268, 280 (Richeson)), and will construe a contract, if possible, in a manner that preserves the police power. (Id. at p. 281, citing Delucchi v. County of Santa Cruz (1986) 179 Cal.App.3d 814, 823-824.)
The SA contains several provisions that petitioners contend violate the rule against contracting away the police power. The most significant are the provisions that the DAP and EIR not be released without the concurrence of both the City and the University, that any mitigation measures in the EIR be acceptable to UC Berkeley and applicable to all projects in the downtown area, that UC Berkeley reserved the right to determine if the DAP or EIR met the Regents’ needs, based on whether they accommodated UC Berkeley’s development in a manner satisfactory to the Regents, and that the City would certify the EIR and adopt the DAP within 48 months or suffer reduced payments from UC Berkeley. These provisions, according to Petitioners, effectively grant the University veto power over the City’s land use decisions in the downtown area.
We agree with the trial court that petitioners have presented a justiciable controversy as to this issue. (See Alameda County, supra, 38 Cal.App.4th at pp. 1723-1724 [action for declaratory relief lies when parties dispute whether a public entity has engaged in conduct or established policies in violation of applicable law].)
At the outset, we note that “[i]n view of the virtually plenary power of the Regents in the regulation of affairs relating to the university and the use of property owned or leased by it for educational purposes, it is not subject to municipal regulation . . . . [¶] . . . [¶] Thus, the University of California is not subject to local regulations with regard to its use or management of the property held by the Regents in public trust.” (Regents of University of California v. City of Santa Monica (1978) 77 Cal.App.3d 130, 136-137 (Santa Monica).) There is no dispute that the City’s power to restrict the University’s use of its property in Berkeley is limited. It is against this background that the City and the University entered into the SA.
We conclude the SA does not amount to a surrender of the City’s control over the downtown area. It is true that the SA contemplates that the City and UC Berkeley would prepare a joint DAP and EIR, provides that it would not be released without concurrence of both parties, and allows UC Berkeley to withhold its concurrence based on a good faith disagreement regarding land use planning or CEQA issues and to determine if the DAP or EIR would accommodate its development satisfactorily. However, just as the DAP and EIR may not be released without UC Berkeley’s concurrence, neither may it be released without the City’s concurrence.
A central question here is what will happen if the City and the University cannot agree on the contents of the DAP and EIR. The City and the University contend that under the SA, the City will then be free to develop its own DAP without the University’s cooperation—and the University will be free to disregard it in developing its own property. (See Santa Monica, supra, 77 Cal.App.3d at pp. 136-137.) Petitioners argue, however, that under the SA’s terms, the City would be “effectively disable[d] . . . from its land use planning function” if the University disapproves the DAP and DAP EIR.
The City and the University have the better of the argument. The SA does not commit the City to any particular result. That fact distinguishes this case from others in which a public entity had agreed by contract to exercise its police power in a particular way in the future. (See, e.g., Trancas Property Owners Assn. v. City of Malibu (2006) 138 Cal.App.4th 172, 181-183 [covenant to restrict future zoning].) For example, in Alameda County several public entities agreed to adopt parallel amendments to their general plans providing that the amendments would not be effective unless adopted by the other respondents. (Alameda County, supra, 38 Cal.App.4th 1716, 1720.) Division Five of the First Appellate District concluded that this provision was an impermissible surrender of each public entity’s power to amend its own general plan because it effectively provided outside jurisdictions with a veto over such amendments. (Id. at pp. 1724-1725.)
No such veto power exists here. The City has not lost the power to regulate the portions of the downtown area subject to its land use authority. If the City and the University have a good faith disagreement regarding land use planning or CEQA issues, the University need not concur in the release of the joint plan. In that case, nothing in the SA prohibits the City from developing its own plan and preparing an EIR for that plan. Mindful that we should construe the SA, if possible, in a manner that preserves the City’s police power (see Richeson, supra, 158 Cal.App.4th at p. 281), we will not read into the SA the limitation that the City may not adopt its own plan for the downtown area if it is unable to agree with the University on a joint plan. Nor, for that matter, will we assume that the City will not exercise its independent judgment if a joint plan and EIR are released. (See Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1398 [county exercised independent judgment in releasing negative declaration prepared by another agency].)
The University states in its respondent’s brief: “If . . . the joint planning effort by the City and the University fails to develop a Downtown Area Plan acceptable to both parties, the University will simply rely on its 2020 LRDP and 2020 LRDP EIR in implementing its projects in the downtown area. Under these circumstances, the City will be free to develop whatever Downtown Area Plan it chooses, or none at all.”
We are not persuaded otherwise by the provision that UC Berkeley’s $1.2 million annual payments to the City for the term of the 2020 LRDP will be reduced by $180,000 each year, or $15,000 per month of delay, if the goal of certifying the EIR and adopting the DAP within 48 months is not met “as a result of City action or inaction not caused by UC Berkeley’s failure to perform” under the SA. This reduction is limited and predictable, and in any case the City has not committed to agree to any particular measures in the DAP or the EIR. Indeed, in light of the University’s obligation to carry out in good faith the negotiations contemplated by the SA (see Locke v. Warner Bros., Inc. (1997) 57 Cal.App.4th 354, 363 [contracts that confer discretionary power include duty to exercise discretion in good faith]), and the City’s right under the SA to withhold its concurrence to the release of the DAP and EIR in case of a good faith disagreement about land use or CEQA issues, we will not infer that the City will be constrained to accept any terms that violate its independent judgment. While the agreement may give the City an incentive to act in a timely manner, we do not believe it constrains the City’s exercise of its police power.
Petitioners also contend that the SA “unlawfully subordinates the City’s land use authority to the University by requiring the DAP to conform to the University’s LRDP.” For this contention, they rely on the following language in the SA: “UC Berkeley will continue to use the 2020 LRDP and 2020 LRDP EIR. The DAP EIR will not supersede the 2020 LRDP EIR, but rather augment it.” In our view, this provision does not subordinate the City’s authority to the University’s, but rather recognizes the University’s autonomy in land use matters as to properties owned or leased for educational purposes. (See Santa Monica, supra, 77 Cal.App.3d at pp. 136-137.)
Petitioners raise a number of other points on which they contend the SA divests the City of its police power. Most of them are encompassed in our previous discussion, but some bear specific mention. Petitioners argue that by agreeing not to impose parking taxes or impose certain sewer fees on the University, the City has “surrender[ed]” and “abjur[ed]” its autonomy. Not so. The City made those agreements “as long as the total of fiscal considerations [paid by UC Berkeley to the City] are not reduced.” By compromising a legitimate dispute about the University’s liability for those taxes and fees, the City exercised, rather than gave up, its police power. For the same reason, we do not believe the City gave up its police power in agreeing—in return for the University’s payments and cooperation in the preparation of the DAP—to dismiss with prejudice its lawsuit challenging the 2020 LRDP and to forbear from pursuing legal challenges to the approval of projects that are consistent with the 2020 LRDP and 2020 LRDP EIR.
We likewise reject petitioners’ argument that the SA’s provision for specific enforcement renders it invalid. The SA provides: “Except to the extent other remedies for default under this Agreement are otherwise specified herein, the parties’ obligations under this Agreement shall be specifically enforceable, and any non-defaulting party may bring an action for specific performance or any other appropriate relief in the Superior Court.” We do not construe this provision as requiring the City to use its police power in any particular manner or allowing a court to require it to do so. While the City has agreed to cooperate with the University in preparing the DAP and DAP EIR, the SA allows either party to withhold its concurrence in case of a good faith disagreement regarding land use planning or CEQA issues.
The parties disagree about whether the trial court should have taken judicial notice of certain materials, particularly those prepared after the City and the University entered into the SA. We have concluded the SA does not divest the City of its police power without reference to these materials. Accordingly, we need not decide whether the trial court erred in taking judicial notice. Nor do we decide whether the trial court was correct in ruling the statute of limitations in Government Code section 65009 inapplicable.
B. The CEQA Cause of Action
The trial court sustained the demurrer to the CEQA cause of action without leave to amend, on the ground that the SA was not a project under CEQA and thus was not subject to CEQA’s environmental review requirements, and that the CEQA claim was not ripe for review.
The trial court reasoned on this point as follows: “While it is correct that the Settlement Agreement contemplates a future ‘project,’ i.e., the development of a specific development plan, the Downtown Area Plan, it does not legally commit City to the adoption of such a plan, or set forth the content of such a plan. Thus it is premature to require environmental review at this point. While it is policy under CEQA that environmental analysis be prepared as early as possible in the planning process, that policy must be balanced against the practical demand that the decision-making process underlying a given ‘project’ be sufficiently developed to provide meaningful information for the review. [Citation.] Moreover, to the extent the Settlement Agreement includes provisions that might affect the environmental review process for the Downtown Area Plan, it is not possible for the Court to gauge the completeness or adequacy of environmental review until after the CEQA policy is completed. [Citation.] Thus claims on that ground are not ripe.”
The trial court’s analysis is correct. Petitioners alleged that City had violated CEQA in several respects by approving the SA: by failing to preserve its “exclusive and independent discretion and authority” as lead agency; by subordinating to the University the City Council’s independent discretion and authority to determine the adequacy of the DAP EIR and the feasibility of mitigation measures and alternatives; and by failing to conduct review under CEQA, including conducting an initial study of the potential environmental impacts of the SA, preparing either a negative declaration, a mitigated negative declaration, or an EIR of the SA’s potential impacts, discussing and evaluating the SA’s effects or consistency with the City’s General Plan and Downtown Plan, considering a range of alternatives to and mitigation measures for the SA, allowing for public comments regarding the SA, and adopting findings of fact regarding the SA’s environmental impacts.
Although the petition treated the adoption of the SA as a project that required full environmental review, petitioners now acknowledge that the SA was not a project under CEQA. And there is no disagreement that the DAP, if adopted, will be a project subject to full environmental review. Petitioners contend, however, that the status of the SA as a project is irrelevant to whether they may state a cause of action under CEQA based on the contention that the SA requires the City to divest itself of its authority under CEQA as lead agency by conditioning the release of the DAP and DAP EIR on the University’s approval. Petitioners have drawn our attention to no cases, and our own research has disclosed none, in which a cause of action under CEQA was held to be ripe for review before a project had been proposed or approved, and before the agency was required to conduct environmental review.
CEQA defines “project” as “an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and which is any of the following: [¶] (a) An activity directly undertaken by any public agency. [¶] (b) An activity undertaken by a person which is supported, in whole or in part, through contract, grants, subsidies, loans, or other forms of assistance from one or more public agencies. [¶] (c) An activity that involves the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies.” (§ 21065.) The CEQA Guidelines provides that project means “the whole of an action, which has the potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment . . .” (CEQA Guidelines, 14 Cal. Code Regs., § 15378, subd. (a), italics added.)
A review of CEQA’s provisions for initiating actions supports the conclusion that the Legislature did not contemplate a cause of action under CEQA at this preliminary stage. Section 21167, which sets forth the limitations periods for challenging a public agency’s acts based on noncompliance with CEQA, applies to actions or proceedings alleging: (a) that a public agency is carrying out a project that may have a significant effect on the environment without having determined whether it would do so; (b) that a public agency has improperly determined whether a project may have a significant effect on the environment; (c) that an environmental impact report does not comply with CEQA; (d) that an agency has improperly determined that a project is not subject to CEQA; and (e) that another act or omission of a public agency does not comply with CEQA, with the limitations periods measured from the date of filing of the notice of approval or determination to carry out a project (see §§ 21108 & 21152) or of project approval or commencement. Each of these limitations periods contemplates judicial review of agency action after the agency has either decided to carry out a proposed project or has conducted environmental review.
Furthermore, petitioners’ position invites multiple CEQA challenges to the same project at each stage of the agency’s actions. We are aware of no authority for such a result, and indeed, it would conflict with the legislative goals of avoiding delay and achieving prompt resolution of CEQA claims. (See San Franciscans for Reasonable Growth v. City and County of San Francisco (1987) 189 Cal.App.3d 498, 504 (San Franciscans for Reasonable Growth); Dakin v. Department of Forestry & Fire Protection (1993) 17 Cal.App.4th 681, 686-687.)
We conclude that the trial court correctly sustained the demurrer to the CEQA cause of action. This does not mean that petitioners were barred from mounting any challenge to the SA. In fact, as we have discussed, the trial court properly reached the merits of petitioners’ other challenges to the SA. We simply conclude that CEQA does not provide the basis for an action based on these facts.
C. Attorney Fees
1. Background
Petitioners contend the trial court erred in awarding attorney fees incurred as a result of their failure to comply with section 21167.4. Section 21167.4 provides in pertinent part: “(a) In any action or proceeding alleging noncompliance with [CEQA], the petitioner shall request a hearing within 90 days from the date of filing the petition or shall be subject to dismissal on the court’s own motion or on the motion of any party interested in the action or proceeding. [¶] (b) The petitioner shall serve a notice of the request for a hearing on all parties at the time that the petitioner files the request for a hearing.”
Petitioner filed this action, which included allegations of noncompliance with CEQA, on September 1, 2005. On September 16, 2005, the trial court noticed a hearing on the petition, setting it for January 10, 2006, and petitioners served the notice on the City and the University. The trial court dropped this date from the calendar on October 11, 2006. The City and the University demurred to the petition, and petitioners filed a first amended petition on November 29, 2005.
The City and University moved to dismiss the action on the ground Petitioners had failed to file a request for a hearing pursuant to section 21167.4, subdivision (a). In opposition, petitioner’s counsel stated that he had concluded that there was no need to file a request under section 21167.4, subdivision (a), because the court had already set a hearing date. The trial court granted the motion as to the first cause of action for violation of CEQA, and denied it as to all other causes of action.
Petitioners moved for relief from the dismissal pursuant to Code of Civil Procedure section 473, subdivision (b). The trial court granted the motion, finding that Petitioners’ failure to comply with section 21167.4 was an excusable mistake based on a good faith but faulty belief that the court’s action in setting a hearing date, and petitioners’ service of the notice on the other parties, relieved petitioners of the duty to file a formal request for a hearing. The court awarded the City and the University its attorney fees incurred as a result of petitioners’ failure to timely comply with section 21167.4, and ordered them to submit an accounting of those fees and costs. The accounting the City and the University submitted included the fees incurred in connection with both bringing the motion to dismiss and opposing petitioners’ motion for relief from the dismissal. Petitioners moved to tax the attorney fees, contending the City and the University were not entitled to fees incurred in their unsuccessful defense against the motion for relief from the dismissal. The trial court denied the motion to tax, ruling that the attorney fees claimed were “all the direct result of the Petitioners’ failure to comply with Public Resources Code section 21167.4.”
Petitioners contend the trial court erred both in ruling they had not complied with section 21167.4 and in awarding attorney fees incurred in opposing the motion for relief from dismissal.
2. Request for Hearing Date
The requirement that a petitioner request a hearing is mandatory. (San Franciscans for Reasonable Growth, supra, 189 Cal.App.3d at pp. 503-504; McCormick v. Board of Supervisors (1988) 198 Cal.App.3d 352, 357 (McCormick); Fiorentino v. City of Fresno (2007) 150 Cal.App.4th 596, 602-603.) The purpose of the requirement is to avoid delay and resolve CEQA claims promptly. (San Franciscans for Reasonable Growth, supra, 189 Cal.App.3d at p. 504; see also Miller v. City of Hermosa Beach (1993) 13 Cal.App.4th 1118, 1135.) As noted in Association for Sensible Development at Northstar, Inc. v. Placer County (2004) 122 Cal.App.4th 1289, 1293 (Association for Sensible Development), “the policy behind section 21167.4 is to ensure that mandate proceedings challenging environmental approvals are conducted expeditiously and squarely places the burden on the challenger to tender its claim for resolution at an early point in the proceedings or lose it altogether.” Accordingly, as stated in McCormick, “section 21167.4 requires the petitioner to take affirmative steps sufficient to place the matter on the court’s docket for a hearing, either by filing and serving a notice of hearing or utilizing some other method authorized by the local rules of the court in which the matter is pending.” (McCormick, supra, 198 Cal.App.3d at p. 358.)
Petitioners do not dispute that they did not file a request for a hearing within 90 days of filing their initial petition, but contend they fulfilled their responsibility to do so by serving the trial court’s notice of the hearing date on the other parties. The parties have drawn our attention to no case directly on point, and our own research has disclosed none. We agree with petitioners, however, that the purpose of section 21167.4 was satisfied when they served on the other parties the court’s own notice of hearing date. To read section 21167.4 as requiring a petitioner to file a request for a hearing that had already been set would be to require a meaningless act. Indeed, the court in Leavitt v. County of Madera (2004) 123 Cal.App.4th 1502, 1521, ruled that “a request for a hearing under section 21167.4 is not required to include the setting of a hearing date. . . . Instead, the current version of section 21167.4 requires the date for the hearing on the petition’s merits to be set by the court in conjunction with setting the briefing schedule.” (See also Association for Sensible Development, supra, 122 Cal.App.4th at p. 1294.) Thus, petitioners substantially complied with section 21167.4 by serving the court’s notice of hearing, and the trial court should not have dismissed the CEQA claim.
The University and the City have disputed the contention that petitioners served the trial court’s notice on them. There does not appear to be any contemporaneous proof of service of the notice of hearing date. Instead, petitioners submitted a declaration made by a legal secretary at their counsel’s office on January 30, 2006, stating that she had served the notice of hearing on September 20, 2005. As substantiation, attached to the declaration was a “postage sheet” indicating that $.74 had been spent in postage to opposing counsel on that date. The trial court’s April 4, 2006, order makes clear that it accepted the evidence that petitioners had served the notice. There is evidence to support this conclusion, and we will not disturb it on appeal.
The attorney fees the trial court awarded were based on respondents’ costs in opposing the motion for relief from dismissal. Having concluded that petitioners satisfied the requirements of section 21167.4 and that the CEQA claim should not have been dismissed, we necessarily also conclude that attorney fees arising out of that dismissal should not have been awarded. Accordingly, we need not decide whether the fees awarded were excessive.
III. DISPOSITION
The award of attorney fees is reversed. In all other respects, the judgment is affirmed.
We concur: RUVOLO, P.J., REARDON, J.