Opinion
C092233
06-28-2021
NORTH COAST RIVERS ALLIANCE et al., Plaintiffs and Appellants, v. WESTLANDS WATER DISTRICT, Defendant and Respondent.
NOT TO BE PUBLISHED
Super. Ct. No. 192958
DUARTE, J.
Respondent Westlands Water District (Westlands) entered into identical stipulated judgments resolving three related lawsuits seeking to prohibit its participation in a federal project to raise Shasta Dam. Following the entry of judgment, petitioners and appellants North Coast Rivers Alliance and San Francisco Crab Boat Owners Association (collectively NCRA [and will subsequently be referenced in plural form]) filed a motion requesting attorney fees under Code of Civil Procedure section 1021.5. The trial court denied NCRA's motion, concluding that NCRA failed to satisfy their burden to show that they rendered services that were necessary to the success that was achieved in the litigation.
Further undesignated statutory references are to the Code of Civil Procedure.
NCRA appeal the trial court's order and contend that they provided substantial evidence demonstrating their entitlement to attorney fees. We conclude that the court's order was not an abuse of discretion and affirm the order.
FACTS AND PROCEEDINGS
Litigation Background
On May 13, 2019, the Attorney General filed a complaint for declaratory and injunctive relief and petition for writ of mandate alleging Westlands violated the California Wild and Scenic Rivers Act (Rivers Act), Public Resources Code section 5093.542. The Attorney General alleged that Westlands had issued an initial study/notice of preparation to commence environmental review, pursuant to the California Environmental Quality Act (CEQA), to assist it in deciding whether to help fund the United States Bureau Reclamation's potential project to raise Shasta Dam. That same day, Friends of the River filed a similar complaint for declaratory and injunctive relief and petition for writ of mandate against Westlands, also alleging a violation of the Rivers Act.
All further date references are to the year 2019 unless otherwise specified.
Public Resources Code section 5093.542 declares in part: “[T]he McCloud River possesses extraordinary resources in that it supports one of the finest wild trout fisheries in the state.” The Legislature further found that “maintaining [a specified segment of] the McCloud River in its free-flowing condition to protect its fishery is the highest and most beneficial use of the waters of the McCloud River....” (Id., subd. (a).) The Legislature intended to maintain the free-flowing condition of a specified section of the McCloud River from impairment by the construction of any further dam, reservoir, diversion, or other water impoundment facility. (Id., subd. (b).) Excepting participation by the Department of Water Resources in studies involving possible enlargement of the Shasta Dam, the statute bars any state department or agency from assisting with or cooperating in the “planning or construction of any dam, reservoir, diversion, or other water impoundment facility that could have an adverse effect on the free-flowing condition of the McCloud River, or on its wild trout fishery.” (Id., subd. (c).)
As permitted by Evidence Code section 452, subdivision (d), we take judicial notice of the records related to three separate petitions for writ of mandate filed by Westlands, related to the trial court's denial of its motion to change venue as to the actions filed by the Attorney General (Westlands Water District v. Superior Court (C090208, Aug. 22, 2019)) and Friends of the River (Westlands Water District v. Superior Court (C090186, Aug. 20, 2019), and the trial court's grant of the Attorney General's motion for preliminary injunction (Westlands v. Superior Court (C090139, Aug. 12, 2019)). (Evid. Code, §§ 459, subd. (a); 452, subd. (d).) We do not take judicial notice of the truth of any factual assertions appearing in the documents. (Espinoza v. Calva (2008) 169 Cal.App.4th 1393, 1396 [“We can take judicial notice of the fact the pleadings were filed, but not of the truth of the statements contained in them”].)
On June 12, the Attorney General moved for a preliminary injunction. That same day Westlands filed motions to transfer the actions of the Attorney General and Friends of the River from Shasta County to Fresno County.
On July 5, NCRA filed their petition for writ of mandate and complaint for declaratory and injunctive relief, which alleged violations of the Rivers Act based on Westlands' conducting environmental review pursuant to CEQA, the public trust doctrine, and the Delta Reform Act; the complaint also alleged that Westlands was a state agency as defined by Water Code section 11102.
“ ‘State agency' includes any irrigation district, reclamation district, municipal utility district, public utility district, water district, water storage district, and any public or municipal corporation, political subdivision, district, State agency or authority now or hereafter organized under and by virtue of the laws of the State now in effect or hereafter enacted.”
On July 29, the trial court granted the Attorney General's request for a preliminary injunction, enjoining Westlands from “taking any action that constitutes planning for or the construction of the Shasta Dam Raise Project, pending trial of this matter” and enjoining Westlands' CEQA process initiated in November 2018. On August 12, Westlands filed a petition for writ of mandate in this court seeking review of the preliminary injunction.
On July 30, the trial court denied Westlands' motions to transfer Friends of the River's action, and on August 9 it denied the motion to transfer the Attorney General's action. Westlands filed petitions for writ of mandate seeking review in this court.
On August 22, Westlands filed yet another motion to transfer venue to Fresno, this time as to NCRA's action. On August 29, we denied Westlands' petitions for writ of mandate regarding the two previous denials of the motions to transfer venue to Fresno. We also denied the writ petition regarding the grant of the preliminary injunction.
We grant Westlands' request that we take judicial notice of this court's orders denying its petitions for writ of mandate regarding the trial court's orders denying Westlands' requests for change of venue. (Evid. Code, §§ 452, subd. (d), 459.)
NCRA's opposition to Westlands' motion to transfer venue observed that the trial court had already denied Westlands' motion in the cases brought by Friends of the River and the Attorney General, and this court had denied Westlands' petitions seeking writ relief. In reply Westlands informed the trial court it no longer sought to transfer the action and did not object to denial of its motion. The court denied the motion, recognizing that “transfer of venue is no longer being sought.”
On September 25, our Supreme Court denied Westlands' petition for review of our denial of its petition for writ of mandate regarding the preliminary injunction. On September 30, Westlands formally withdrew its initial study/notice of preparation.
Westlands and NCRA entered a stipulation for entry of judgment, and NCRA's case was dismissed on November 12. The substance of the stipulated judgment is identical to the stipulated judgments entered in the two cases brought by the Attorney General and Friends of the River, which were also dismissed on November 12. Each stipulated judgment states in part that the judgment “does not decide the merits of any claim or issue raised in this case, and as such, does not constitute any evidence against or admission by any party to this case or any third party regarding any issue of fact or law....” The stipulated judgment only prohibits Westlands from undertaking certain actions “to the extent doing so would violate Public Resources Code section 5093.542.”
We grant Westlands' request that we take judicial notice of the stipulated judgments entered between Westlands and the Attorney General and Friends of the River. (Evid. Code, §§ 452, subd. (d), 459.)
NCRA's Motion for Attorney Fees
NCRA filed a motion seeking more than $303, 835 in attorney fees pursuant to section 1021.5. NCRA's motion asserted that they were successful parties in the litigation, that they had enforced important rights affecting the public interest, that a significant benefit was conferred on a large class of persons, and private enforcement was necessary and the case posed an undue financial burden. NCRA contended that they provided “ ‘necessary and significant services of value to the public' ” in four respects: (1) they alleged that Westlands is a state agency under Water Code section 11102, which the Attorney General did not allege; (2) they alleged causes of action under the public trust doctrine and the Delta Reform Act, which were not alleged by the Attorney General; (3) they meaningfully participated in settlement negotiations; and (4) NCRA could not assume that the Attorney General or Friends of the River would prosecute the litigation to the complete remedy that was obtained.
Section 1021.5 provides in relevant 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.”
We previously denied NCRA's request that we take judicial notice of a document in support of this assertion.
Westlands opposed NCRA's motion. It asserted that NCRA was not a successful party, that private enforcement was not necessary because NCRA did not advance significant nonduplicative factual or legal theories adopted by the court or produce substantial evidence significantly contributing to the court's judgment, and they did not confer any significant public benefit.
Trial Court Ruling
The trial court issued a tentative ruling denying NCRA's motion and adopted the tentative ruling following a hearing. The court recognized that NCRA was a successful party because “the parties” achieved a significant public benefit in securing the stipulated judgment, and it agreed with NCRA that the stipulated judgment represented a significant benefit. However, the court concluded that NCRA failed to satisfy their burden to show that they rendered services that were necessary to the success that was achieved. The court expressly noted the arguments NCRA raised in support of their motion, and it found that NCRA's evidence “simply does not rise to the level of meeting the burden to show necessary and significant services rendered.” It found that the mere assertion of different theories of liability, in addition to the cause of action that was duplicative of the Attorney General's, was not sufficient to meet the applicable test. The court also found that NCRA “provided nothing to show that they produced any evidence, let alone substantial evidence, contributing to the judgment, or any evidence that was not produced by the [Attorney General].”
The trial court further observed that it considered the timing of the filing of NCRA's action, although it did not make its determination solely on that basis. The court observed that at the time NCRA filed their complaint, the Attorney General had already demonstrated his ability and willingness to prosecute the matter. Specifically, by the time NCRA filed their complaint, the Attorney General had filed his complaint and issued the summons, Westlands had moved to change venue, and the Attorney General had petitioned for preliminary injunction.
NCRA timely appealed the trial court's order.
DISCUSSION
I
NCRA's Motion for Attorney Fees
NCRA challenge the trial court's finding that their participation in the litigation did not constitute a necessary and significant contribution to the successful joint prosecution of the three related proceedings. As we will explain, we conclude the trial court did not abuse its discretion in finding that NCRA's contribution to the evidence did not rise to the level required to support an attorney fees award.
A. Standard of Review
“ ‘The determination whether a party has met the requirement for an award of fees and the reasonable amount of such an award are matters best decided by the trial court in the first instance. [Citation.] That court “ ‘ “must realistically assess the litigation and determine from a practical perspective whether the statutory criteria have been met.”' ” [Citation.] We will uphold the trial court's decision to award attorney fees under section 1021.5 unless the trial court abused its discretion. [Citation.] In making this determination we review the entire record, noting the trial court's stated reasons for awarding fees and whether it applied the proper standards of law in reaching its decision. [Citation.]' [Citation.] We will reverse the trial court's determination only if the resulting injury ‘ “ ‘ “is sufficiently grave to amount to a manifest miscarriage of justice, ”' ” and “ ‘no reasonable basis for the action is shown.' ” [Citation.]' [Citation.]” (Early v. Becerra (2021) 60 Cal.App.5th 726, 736.)
However, the question of whether a party has established eligibility for attorney fees under section 1021.5 is a mixed question of law and fact: “To the extent we construe and define the statutory requirements for an award of attorney's fees, our review is de novo; to the extent we assess whether those requirements were properly applied, our review is for an abuse of discretion.” (La Mirada Avenue Neighborhood Assn. of Hollywood v. City of Los Angeles (2018) 22 Cal.App.5th 1149, 1156.)
B. Standard for Determining Necessity of Private Enforcement
NCRA do not contend that the trial court misconstrued the standard for determining the necessity of private enforcement. Rather, as we discuss post, NCRA contend that the court abused its discretion in applying the standard. Accordingly we set forth the applicable standard, correctly described by the trial court, for purposes of determining whether the trial court abused its discretion.
As in Committee to Defend Reproductive Rights v. A Free Pregnancy Center (1991) 229 Cal.App.3d 633 at page 639 (Committee to Defend), “[t]his appeal concerns the second criteria [of § 1021.5], the necessity of private enforcement. This factor ‘ “looks to the adequacy of public enforcement and seeks economic equalization of representation in cases where private enforcement is necessary.”' ” That case, as here, involved “that relatively rare minority of cases where relief and concomitant private attorney general fees are sought to be recovered from a private defendant also sued by a public entity.” (Id. at p. 642.)
Where the Attorney General performs its function, the courtin Committee to Defend set forth two important factors for trial courts to consider when determining whether the services of a private party were necessary: “(1) Did the private party advance significant factual or legal theories adopted by the court, thereby providing a material non de minimis contribution to its judgment, which were nonduplicative of those advanced by the governmental entity? (2) Did the private party produce substantial evidence significantly contributing to the court's judgment which was not produced by the governmental entity, and which was neither duplicative of nor merely cumulative to the evidence produced by the governmental entity?” (Committee to Defend, supra, 229 Cal.App.3d at pp. 642-643.)
The appellate court continued: “[T]he necessity element is not to be determined simply by the form of such private services. A private litigant's theories or arguments, while literally different from those advanced by the governmental entity, may or may not lack significance in contributing to the result obtained.” (Committee to Defend, supra, 229 Cal.App.3d at p. 643.) The court further recognized that trial courts “must carefully walk the line between unreasonably transmuting section 1021.5 into an unwarranted cornucopia of attorney fees for those who intervene in, or initiate litigation against, private parties under the guise of benefiting the public interest while actually performing duplicative, unnecessary, and valueless services, and providing appropriate compensation under that statute in cases where the colitigating private party does render necessary, significant services of value and benefit to the public.” (Id. at pp. 643-644.)
C. Applying the Committee to Defend Standard
NCRA assert that the trial court abused its discretion in applying the applicable standard because they provided substantial evidence of the following necessary and significant contribution to the proceedings: (1) they participated in the negotiation and preparation of the stipulated judgment; (2) they “for years” submitted detailed comments objecting to Westlands' promotion of the project because it violated the Rivers Act; (3) their verified petition alleged that Westlands' proposed participation in the project violated the public trust doctrine and the Delta Reform Act, claims not raised by the Attorney General, and they alleged additional facts related to the Rivers Act claim; and (4) they successfully defeated Westlands' motion to transfer venue. We consider these arguments in turn.
1. Negotiating and Preparing the Stipulated Judgment
NCRA contend that the trial court abused its discretion by finding that they “provided nothing to show that they... contribut[ed] to the judgment, ” because NCRA's lawyers “participated fully in and made significant contributions to the formulation of the parties' Stipulated Judgment, to assure its broad and effective enforcement.” NCRA assert their attorneys spent 7.1 hours over 10 days preparing and revising the Stipulated Judgment.
NCRA misrepresent the nature of the trial court's findings. The court's finding, which NCRA partially omit with ellipses, stated: “[NCRA] have provided nothing to show that they produced any evidence, let alone substantial evidence, contributing to the judgment, or any evidence that was not provided by the [Attorney General].” In the previous sentences of the court's ruling, the court found that NCRA's evidence “simply does not rise to the level of meeting the burden to show necessary and significant services rendered. The mere fact that [NCRA] alleged different theories of liability in addition to the cause of action that is duplicative of the [Attorney General's] does not meet the test set forth in Committee to Defend.” Accordingly, the court found that NCRA's participation in settlement negotiations did not constitute evidence rising to the level of meeting the burden to show necessary and significant services rendered. That finding is not an abuse of discretion. We do not see how participating in settlement negotiations constitutes “advanc[ing] significant factual or legal theories adopted by the court” or “produc[ing] substantial evidence significantly contributing to the court's judgment” which was not produced by, duplicative of, or cumulative to the evidence produced by the Attorney General. (Committee to Defend, supra, 229 Cal.App.3d at pp. 642, 643.)
Our conclusion is supported by Ciani v. San Diego Trust & Savings Bank (1994) 25 Cal.App.4th 563 at page 573, in which the appellate court concluded that a private litigant had forfeited his argument that the court should consider other factors beyond those identified by Committee to Defend, including whether he provided “substantial assistance” to the state. The court further concluded that the addition of a “substantial assistance” factor “would undercut the requirement for ‘necessity' by reducing the threshold from ‘necessary activity' to mere ‘helpful activity.' ” (Ibid.)
Similarly, here, NCRA appear to advocate for a “substantial assistance” or “helpful activity” standard. To the extent NCRA advocate for a change in the standard, their argument is forfeited for failing to argue that the trial court applied the incorrect legal standard. To the extent NCRA assert that their assertedly helpful participation in settlement negotiations falls within the factors identified by Committee to Defend, we conclude the court did not abuse its discretion by finding it did not.
2. Objecting on Westlands' Promotion of the Project
NCRA assert that their lawyers have been actively engaged in administrative proceedings for the past seven years, in which they repeatedly submitted comments objecting to the project, including that Westlands' proposal to assist in the project violated the Rivers Act. They add that they performed a site inspection with local clients and spent many hours researching facts and law related to the project. Thus, NCRA contend they documented for the trial court that they spent many hours attempting to dissuade Westlands from proceeding with the project.
But NCRA again fail to demonstrate that these efforts satisfy the standard set forth in Committee to Defend, supra, 229 Cal.App.3d at pages 642 to 643. The Attorney General alleged a violation of the Rivers Act in his complaint and petition for writ of mandate. While NCRA may have spent hours attempting to dissuade Westlands from pursuing the project before this litigation commenced, that neither constitutes substantial evidence contributing to the judgment nor a factual or legal theory not duplicative of the Attorney General's adopted by the court. We conclude the trial court did not abuse its discretion by finding that NCRA's efforts in administrative proceedings did not constitute a necessary and significant contribution to the proceedings on that basis.
3. Raising Nonduplicative Legal Theories
Next NCRA contend that their petition raised legal violations of the public trust doctrine and the Delta Reform Act, not alleged by the Attorney General, and alleged additional facts regarding the Rivers Act claim, including the correct statutory definition that “locked in Westlands' liability as a ‘state agency.' ” (Wat. Code, § 11102.)
As we have discussed, the Rivers Act violation claim was duplicative of the Attorney General's claim. NCRA point to nothing in the record supporting the conclusion that citing to what they assert to be the correct statutory definition of a “state agency” constitutes a “significant factual or legal theor[y] adopted by the court.” (Committee to Defend, supra, 229 Cal.App.3d at p. 642.) While NCRA contend that the citation to the Water Code “locked in” Westlands' status as a state agency, nothing suggests that Westlands disputed or intended to dispute its status as a state agency or that NCRA's citation to the Water Code otherwise constituted a significant legal theory adopted by the court.
Similarly, although NCRA may have alleged facts showing Westlands' violation of the Rivers Act that were not also alleged by the Attorney General, such as Westland's classification as a state agency, alternative and even necessary allegations alone do not translate to a finding that NCRA produced substantial evidence contributing to the court's judgment. NCRA's brief frames the requirement that they “produce substantial evidence” as a requirement that they produce evidence in support of their fees motion demonstrating that they alleged facts not alleged by the Attorney General. But NCRA point to nothing in the record suggesting that allegations in their petition contributed in any evidentiary way to the judgment. The trial court did not abuse its discretion by finding that allegations were insufficient to meet the applicable standard.
Regarding the public trust doctrine and the Delta Reform Act claims, those claims were not litigated on their merits, and they were neither relied upon (nor even mentioned) in the stipulated judgment, nor were they adopted by the trial court in any other way. The court did not abuse its discretion when it found that those claims did not constitute “factual or legal theories adopted by the court.”
4. Defeating Westlands' Motion to Transfer Venue
Finally, NCRA contend the trial court abused its discretion because NCRA successfully defeated Westlands' motion to transfer venue of their action from Shasta County to Fresno County. But Westlands had already lost the same motion with respect to the actions brought by the Attorney General and Friends of the River, and, after we denied Westlands' petition for writ of mandate, Westlands no longer sought to transfer venue. The court did not abuse its discretion by not awarding NCRA attorney fees based on the denial of a motion that had already been defeated by others.
NCRA assert that they are not barred from recovering attorney fees simply because they filed their case after the Attorney General and Friends of the River. We agree, but NCRA do not contend that the trial court reached such a conclusion or that reversal is required on that basis. NCRA also attempt to distinguish Committee to Defend on the basis that in that case the appellate court reversed and remanded, rather than affirmed, the trial court's denial of fees to the private plaintiffs. (Committee to Defend, supra, 229 Cal.App.3d at p. 646.) But the court in Committee to Defend reversed and remanded because the trial court failed to properly construe the necessity requirement of section 1021.5 (Committee to Defend, at p. 645), which the trial court did not do here. Finally, because we conclude the trial court did not abuse its discretion by not awarding NCRA attorney fees, we do not address Westlands' argument that the amount of fees NCRA requested is unconscionable.
DISPOSITION
The trial court's order denying NCRA's motion for attorney fees is affirmed. Costs on appeal are awarded to respondent. (Cal. Rules of Court, rule 8.278(a) & (b).)
We concur: Raye, P. J., Krause, J.