Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
City and County of San Francisco Super. Ct. No. 417466
Ruvolo, P. J.
I. INTRODUCTION
Francis A. Martin III (Martin) successfully brought an action against the City of San Francisco resulting in a previous opinion in this case. (Martin v. City and County of San Francisco (2005) 135 Cal.App.4th 392) (Martin I).) Martin then moved in the trial court for an award of attorney fees pursuant to Code of Civil Procedure section 1021.5, the so-called private attorney general statute, which request was denied. Martin appeals from this denial. Finding no error in the trial court’s decision, we affirm.
All undesignated statutory references are to the Code of Civil Procedure.
II. FACTUAL AND PROCEDURAL BACKGROUND
On February 18, 2003, Martin filed his complaint for declaratory relief requesting a judicial declaration that the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) “does not apply to an application for a building permit to authoriz[e] plaintiff’s proposed renovations and improvements to the interior of [his home].” After trial on the merits, the court determined Martin “was not entitled to any relief.” (Martin I, supra, 135 Cal.App.4th at p. 399.) Martin appealed that decision and we reversed, holding as a matter of law that “Martin’s proposed modifications, being to the interior of an existing single-family residence and not perceptible to others, lack the potential for causing a significant effect on the environment and are beyond the reach of CEQA.” (Id. at p. 405.) We published that opinion because the issue “ha[d] not been decided in a reported decision.” (Id. at pp. 400-401, fn. 4.)
On remand, Martin moved for fees pursuant to section 1021.5. Among other documents, Martin submitted a declaration substantiating the amount of fees incurred in the litigation (approximately $239,000), and another declaration indicating the cost to him to comply with the environmental review under CEQA would have been approximately $40,000.
The trial court heard oral argument on the fee motion and took the matter under submission. On June 27, 2007, the trial court denied Martin’s motion for fees. Martin filed this timely appeal.
III. DISCUSSION
The standard of review for a motion for attorney fees under the private attorney general statute (§ 1021.5) is abuse of discretion. (Baggett v. Gates (1982) 32 Cal.3d 128, 142-143; Adoption of Joshua S. (2008) 42 Cal.4th 945, 949.) Under this standard, we defer to the trial court’s assessment of the record. (Beach Colony II v. California Coastal Com. (1985) 166 Cal.App.3d 106, 112 (Beach Colony II).) “As applied, this rule means that we should not reverse unless ‘the record establishes there is no reasonable basis’ for the trial court’s action. [Citation.]” (Williams v. San Francisco Bd. of Permit Appeals (1999) 74 Cal.App.4th 961, 965.) However, “ ‘discretion may not be exercised whimsically and, accordingly, reversal is appropriate “where no reasonable basis for the action is shown.” [Citation.]’. . .” (Baggett v. Gates, supra, 32 Cal.3d at p. 143, citing Marini v. Municipal Court (1979) 99 Cal.App.3d 829, 835-837; and see Beach Colony II, supra, 166 Cal.App.3d at p. 113.)
Code of Civil Procedure section 1021.5 provides in pertinent part: “Upon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which 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. . . .”
Martin contends that the de novo standard applies, and not the abuse of discretion standard. But his citation to Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169 for that proposition is unconvincing. There, the issue was whether “advocacy groups” participating in litigation were “opposing parties” for purposes of fee liability assessment under the private attorney general statute. (Id. at p. 1172.) Here, in contrast, the availability of section 1021.5 is not in dispute. The question, rather, is whether Martin failed to meet the requirements of section 1021.5. Therefore, the de novo standard does not apply and we review the trial court’s decision for abuse of discretion.
The private attorney general statute (§ 1021.5) is a well-recognized exception to the American rule that parties bear their own litigation costs. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 565.) This exception rests on the notion 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. [Citations.]” (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 933; see Nelson v. County of Los Angeles (2003) 113 Cal.App.4th 783, 795 [noting “the fundamental purpose of section 1021.5 . . . is ‘to provide some incentive for the plaintiff who acts as a true private attorney general, prosecuting a lawsuit that enforces an important public right and confers a significant benefit, despite the fact that his or her own financial stake in the outcome would not by itself constitute an adequate incentive to litigate.’ [Citation.]”].)
The two requirements of section 1021.5 at issue in the instant matter are subdivisions (a) and (b). Subdivision (a) requires that the suit confer a “significant benefit . . . on the general public or a large class of persons.” Subdivision (b) requires that the “necessity and financial burden of enforcement . . . make the award appropriate.” The party seeking fees must prevail on all the statutory requirements. In the absence of even one of the statutory requirements, the court may deny fees. (Satrap v. Pacific Gas & Electric Co. (1996) 42 Cal.App.4th 72, 81 [“where the court finds that one of the statutory criteria is not met, it is unnecessary to make findings concerning the remaining criteria.” (Original italics; fn. omitted.)]; and see Angelheart v. City of Burbank (1991) 232 Cal.App.3d 460, 470 (Angelheart) [trial court abused discretion awarding fees where significant group not benefited, therefore court does not consider financial burden prong].)
The trial court “agree[d] with [Martin] that the lawsuit enforced an important public right.”
The trial court found that Martin failed to prove the lawsuit resulted in a benefit to a large class and did not demonstrate the necessity and financial burden of the action. Because we conclude that the trial court did not abuse its discretion in determining that the litigation did not bestow a significant benefit on a large class of persons (§ 1021.5, subd. (a)), we need not, and do not, reach any conclusion as to whether Martin’s showing met the necessity and financial burden prong. (See Satrap v. Pacific Gas & Electric Co., supra, 42 Cal.App.4th at p. 81; Angelheart, supra, 232 Cal.App.3d at p. 470.)
In making a decision on fees, the trial court is to “determine whether, in realistic terms, the action at bar conferred a ‘significant benefit on the general public or a large class of persons[.]’. . .” (Woodland Hills Residents Assn., Inc. v. City Council, supra, 23 Cal.3d at p. 940, fn. omitted.) The trial court found Martin’s “main motivation for bringing th[e] litigation was to avoid the time-consuming, intrusive, and expensive public scrutiny of his interior renovation project for his home.” The trial court further found that “although theoretically there may be others that benefit from [Martin]’s case, there is no evidence that this group is large in number.”
Martin contends this was error. He describes Martin I as protecting “every homeowner in San Francisco, and throughout California, who, but for this action, would have been required to run a CEQA gauntlet before undertaking an interior design project.” The problem with this contention is that Martin never demonstrates that the group of persons he identifies is sufficiently large to justify a private attorney general fee award.
Martin’s project was arguably subject to CEQA because of an unusual provision in San Francisco’s Municipal Code which confers on the City discretionary power over all permits. (S.F. Bus. & Tax Regulations Code, § 26; and see Guinnane v. San Francisco City Planning Com. (1989) 209 Cal.App.3d 732, 740.) Martin presented “no evidence that any other municipality retains such jurisdiction.” Indeed, as City pointed out, Martin argued in his trial brief that he was “not aware of any city anywhere that has . . . an ordinance [authorizing discretionary review of interior designs].” (Original italics.) On this record the trial court concluded that most cities make issuance of a permit for a home’s interior remodel ministerial rather than discretionary. It was therefore proper for the trial court to find that in most cities CEQA was already inapplicable to interior remodeling projects because CEQA does not apply to “[m]inisterial projects . . . approved by public agencies.” (Pub. Resources Code, § 21080, subd. (b)(1).)
We note also that CEQA contains a categorical exemption for “[i]nterior or exterior alterations involving such things as interior partitions, plumbing, and electrical conveyances,” so long as the project “involves negligible or no expansion of an existing use.” (Cal. Code Regs., tit. 14, § 15301.) That exemption does not apply to historical resources. (Cal. Code Regs., tit. 14, § 15300.2 [“A categorical exemption shall not be used for a project which may cause a substantial adverse change in the significance of a historical resource.”].) Therefore, even if a city has discretion similar to that conferred on San Francisco by section 26 of the San Francisco Business and Tax Regulations Code, CEQA would still exempt many interior alterations to non-historical resources.
Martin points to no evidence that contradicts these findings. Instead, he relies on language from Beach Colony II: “Colony II’s legal victory is a continuing one and establishes the rights of all land owners similarly situated. There is no requirement the class of persons benefited encompass the entire general public. [Citation.]” (Beach Colony II, supra, 166 Cal.App.3d at p. 112.) But, this language begs the question: surely something less than the entire population may constitute a “large class of persons” for purposes of section 1021.5. However, the record evidence reveals that only persons in San Francisco (and perhaps some other cities) who wish to undertake interior modifications to private homes, which modifications are not already excluded from or categorically exempt from CEQA, are potential members of that class. Martin does not suggest how large a number this might be.
Both parties discuss Angelheart at great length. Angelheart involved a successful challenge by a large day-care home operator to a city ordinance limiting the number of children in those homes in violation of state law. (Angelheart, supra, 232 Cal.App.3d at p. 463.) The appellate court reversed the trial court’s grant of fees because “there [was] no evidence that there was any other person in Burbank, like the Angelhearts, who sought a permit for more than the 10 children allowed in a family day-care home under the former municipal ordinance.” (Id. at p. 468; see § 1021.5, subd. (a).)
To the extent Angelheart requires evidence of some large group benefit before an award under section 1021.5 can be made, it is instructive. “The trial court’s conclusion [that there was significant benefit to a large group of persons] cannot be supported by the facts that two persons applied for a large family day-care home permit in the last two years under the former regulations and that three persons applied for such permit during the first seven months after enactment of the new ordinance. There is nothing to indicate that these applicants were affected by the change in the Burbank zoning ordinances. In other words, the trial court abused its discretion in concluding that the Angelhearts’ action affected others in Burbank when there was no evidence that there were other similarly situated applicants, or that other family day-care homes were then affected by the change in the ordinance, or that family day-care homes would be so affected in the future.” (Angelheart, supra, 232 Cal.App.3d at pp. 468-469.)
Here, as in Angelheart, the record does not show “similarly situated applicants” aside from the existence of San Francisco’s historic districts described in the record of Martin’s prior appeal. As to these historic districts, however, the record does not show that other homeowners have been actually affected by the decision. Similarly, it does not show that anyone has applied for a permit to perform an interior remodel disturbing historic features of their home since Martin I was decided.
Considering the facts as presented in this record, the lower court did not abuse discretion in finding that Martin failed to demonstrate the holding in Martin I confers a “benefit . . . on the general public or a large class of persons.” (§ 1021.5, subd. (a).)
Martin contends that even if the Martin I decision currently only applies in San Francisco, nothing prevents other charter cities from adopting, in the future, the type of discretion retained by San Francisco, and if municipalities do adopt such discretionary standards, the decision will prevent those municipalities from applying CEQA to interior remodels of single-family homes designated an historical resource. The trial court had discretion to consider whether this hypothetical benefit to a hypothetical class were sufficient to satisfy the benefit to a large group prong. (See Beach Colony II, supra, 166 Cal.App.3d at p. 112.) The trial court’s order stated, “although theoretically there may be others that benefit from [Martin]’s case, there is no evidence that this group is large in number.” The trial court reasonably found this class too speculative, and therefore insufficient to support a fee award. (See ibid.) On this record, such a decision is not an abuse of discretion.
Martin directs us to language in Martin I concerning the important ramifications the decision has for personal privacy. (Martin I, supra, 135 Cal.App.4th at p. 405 [“Moreover, the application of CEQA here would introduce a slippery slope, resulting in profound concerns for personal privacy.”].) While we are not unsympathetic to the burden Martin carried in securing this important right, this does not override the need to show that the specific right secured will benefit the general public or a large class of persons. On this point, the record here stands in stark contrast to that in County of San Luis Obispo v. Abalone Alliance (1986) 178 Cal.App.3d 848, which was shown to benefit all Californians who wish to engage in political protests without fear of subsequent economic risks. (See id. at p. 867 [defendant-respondent’s “success in the litigation confirmed important principles limiting the risks of political protest.”].)
Martin argues he was the first, and because of this litigation will be the last individual to contend with this “fundamental policy change” of applying CEQA to interior remodels of historic homes. Whether or not application of CEQA to Martin’s project reflected a change in San Francisco’s policy is a question of fact reserved for the trial court. The trial court rejected this argument by finding “there was no evidence to persuade the Court that the City’s conduct as to [Martin] reflected a change in policy, as opposed to the special facts presented by his proposed project.” This finding is not inconsistent with the record.
Finally, Martin contends that after a successful decision, a plaintiff need not conduct separate discovery on whether there is a benefit to a large class, therefore the sparse record of a large class is sufficient. Martin has no citation for this proposition, but instead claims “[p]eople who own [historically, architecturally, or aesthetically] significant homes frequently undertake substantial redesigns. That fact surely cannot be the subject of legitimate controversy.” This ignores the fundamental question at issue: whether it was an abuse of discretion for the trial court to find that this group benefiting is not large. (§ 1021.5.) There is a legitimate question of whether the size of this class of persons is actually large, and this is a fact revealed neither in the record nor by Martin’s proposition. Since benefit to a large group is a prerequisite to section 1021.5 fees, Martin must prove it. (See Angelheart, supra, 232 Cal.App.3d at pp. 468-470 [discussing lack of evidence presented showing large class and reversing fee award].)
Accordingly, we conclude that the trial court did not abuse its discretion in denying Martin’s fee request under section 1021.5.
IV. Disposition
The order denying attorney fees under section 1021.5 is affirmed. Each party to bear his or its own costs on appeal.
We concur: Reardon, J., Rivera, J.