Coalition for L. County Planning etc. Interest v. Board of Supervisors

• Decision Date: 28 December 1977
• Citation: 142 Cal.Rptr. 766,76 Cal.App.3d 241
• Court: California Court of Appeals Court of Appeals
• Parties: COALITION FOR LOS ANGELES COUNTY PLANNING IN the PUBLIC INTEREST et al., Petitioners, Plaintiffs and Respondents, v. The BOARD OF SUPERVISORS OF the COUNTY OF LOS ANGELES et al., Respondents, Defendants and Appellants. Civ. 51128.

Page 766

142 Cal.Rptr. 766

76 Cal.App.3d 241

COALITION FOR LOS ANGELES COUNTY PLANNING IN the PUBLIC INTEREST et al., Petitioners, Plaintiffs and Respondents, v. The BOARD OF SUPERVISORS OF the COUNTY OF LOS ANGELES et al., Respondents, Defendants and Appellants.

Civ. 51128.

Court of Appeal, Second District, Division 1, California.

Dec. 28, 1977.

Hearing Denied Feb. 23, 1978.

John H. Larson, County Counsel and David H. Breier, Principal Deputy County Counsel, Los Angeles, for respondents, defendants and appellants.

Carlyle W. Hall, Jr., Brent N. Rushforth and John R. Phillips, Los Angeles, for petitioners, plaintiffs and respondents.

LILLIE, Associate Justice.

Defendants appeal from a post-judgment order awarding $170,000 as reasonable attorneys' fees to plaintiffs' ¹ attorneys. They challenge the propriety of the award per se and as to amount. We affirm the order.

Plaintiffs are the Coalition for Los Angeles County Planning in the Public Interest, Sierra Club, Malibu Township Council, Inc., Palos Verdes Coast Watch and three individuals. In the main action they sought writ of mandate, declaratory and injunctive relief testing the validity of the June 28, 1973, amendments to the General Plan for Los Angeles County of October 1, 1970 (1973 General Plan), and certain implementing ordinances. After apparently extensive discovery and following a ten-day trial, the relief prayed for was granted. It was determined that the 1973 General Plan was void as having been founded upon an inadequate environmental impact report (EIR) prepared in ostensible compliance with the California Environmental Quality Act (Pub. Resources Code, §§ 21000 et seq.) and as violative of the Planning and Zoning Law (Gov.Code, §§ 65000 et seq.), that the open space element of the Plan was also void for failure to comply with the Open Space Lands Act (Gov.Code, §§ 65560-65570), and that the two ordinances in question were also void, in one case because the required EIR was inadequate and in the other because no EIR was prepared, no negative declaration was adopted and there was no evidence that the ordinance was enacted under a categorical exemption to the necessity for one or the other. The EIR on the 1973 General Plan was found to be inadequate for numerous reasons including, that it was internally inconsistent, did not include factual support for many of its conclusions and did not describe reasonable alternatives to the proposed General Plan and their prespective environmental impacts. One of the most striking and least explained aspects of the plan was its proposal to designate some 178 square miles as urban expansion area over and above the 173 square miles provided by the 1970 General Plan even though the 1990 projected population of the country was 1.5 million persons fewer than predicted in 1970. Over 99 per cent of the additional 178 square miles of urbanization encroached upon areas of prime soil, watershed, significant ecology, vegetation, gravel deposits, natural drainage and flood hazard or at least one of them. The 1973 General Plan conflicted with the Planning and Zoning Law in that it conformed largely to pre-existing zoning rather than attempting to bring zoning into conformity with the Plan.

The County Board of Supervisors was directed to set aside its adoption of the 1973 General Plan and the implementing ordinances, to prepare and adopt revisions of existing zoning ordinances to make them consistent with the General Plan as adopted, to prepare and adopt a local open space plan consistent with state-declared objectives of such a plan, and to prepare and adopt an appropriate open space zoning ordinance designed to protect various natural resources from the dangers posed by developmental users. Defendants were enjoined from providing for the development, in a manner inconsistent with the uses stated in the 1970 General Plan, of the 178 square miles designated in the 1973 General Plan for additional urban development, the areas designated therein as "Significant Ecological Areas" and "Resource Management Zones" and areas designated "Open Rural and Agricultural Land" in the 1970 Plan. ²

The court reserved jurisdiction to determine the matter of attorneys' fees. In a two step procedure, it was first determined that plaintiffs were entitled to an award of fees under the "substantial benefit" theory; next the amount of fees was determined.

Was the award of attorneys' fees proper? Plaintiffs assert, as they did in the trial court, that it was, not only under the substantial benefit theory but under the "obdurate behavior" and "private attorney general" theories as well. Defendants insist that inasmuch as the trial court rejected all but the substantial benefit theory and because plaintiffs did not file a cross-appeal, the issue is limited to applicability of the theory adopted by the trial court. While it is true that a judgment/order correct under any applicable theory must be affirmed, an appellate court will not employ a theory as grounds for affirmance where that theory rests on determinations of fact, the evidence on the facts was conflicting and the trier of fact made no determinations thereof. (See Zak v. State Farm Mut. Auto Ins. Co., 232 Cal.App. 500, 506, 42 Cal.Rptr. 908.) Certainly the obdurate behavior theory ³ and very likely the private attorney general theory ⁴ require determinations which the court apparently declined to make. Moreover, an appellate court will not ordinarily consider issues not necessary to its decision. (6 Witkin, Cal. Procedure (2d ed. 1971) § 223, p. 4212.) Because we hold that the substantial benefit theory was properly applied we need not consider other theories under which the order awarding fees might be supportable.

The general American rule, reflected in California Code of Civil Procedure section 1021, ⁵ is that a prevailing litigant is not entitled to an award of attorneys' fees in the absence of statutory provision or contractual agreement therefor, neither of which is present in this case. There have been developed, however, certain nonstatutory exceptions to this rule, the exceptions being based on the inherent equitable powers of the court. (D'Amico v. Board of Medical Examiners, 11 Cal.3d 1, 25, 112 Cal.Rptr. 786, 520 P.2d 10.) The earliest exception is called the "common fund" principle. Where a litigant has been responsible for the creation or preservation of a special fund to which other nonlitigants are entitled in common, a court may award attorneys' fees out of the fund to prevent the other claimants from being unjustly enriched at the expense of the party responsible for the common benefit. (See, e. g., Estate of Stauffer, 53 Cal.2d 124, 132, 346 P.2d 748.) The substantial benefit theory is derived from the common fund principle. A litigant whose action has been responsible for conferring on a group substantial nonpecuniary benefits may similarly be awarded his attorneys' fees. The earliest California case employing this theory (Fletcher v. A. J. Industries, Inc., 266 Cal.App.2d 313, 72 Cal.Rptr. 146) involved a corporate derivative action. The efforts of the stockholder plaintiffs, while not resulting in a common fund of money, produced significant benefits in the form of changes in corporate management policies or procedures corporate therapeutics (Mills v. Electric Auto-Lite (1970) 396 U.S. 375, 396, 90 S.Ct. 616, 24 L.Ed.2d 593) which inured to the benefit of all shareholders. By awarding fees payable by the defendant corporation the costs of suit were spread among those who benefited thereby the shareholders. ⁶ The next setting in which the substantial benefit theory was employed involved a taxpayers' suit in which a writ of mandate issued generally to compel the City and County of San Francisco to undertake an investigation of property tax assessment practices and to take steps to assess and collect property taxes on parcels of property found to be not assessed or under-assessed by the assessor's office. (Knoff v. City etc. of San Francisco, 1 Cal.App.3d 184, 81 Cal.Rptr. 683.)

With reference to these cases, defendants maintain that the substantial benefit rule is applicable only in the case of a corporate derivative or class action. While there is language in some cases (e. g., D'Amico v. Board of Medical Examiners, 11 Cal.3d 1, 25, 112 Cal.Rptr. 786, 520 P.2d 10) which seems to say as much, the statements must be considered as reflecting the history of the theory not its dimensions.

In Mandel v. Hodges, 54 Cal.App.3d 596, 127 Cal.Rptr. 244, which was neither a corporate derivative nor class action, plaintiff obtained declaratory and injunctive relief barring the Governor from ordering the closure of state offices on Good Friday between the hours of noon and 3 p.m. and from granting state employees paid time off during the three-hour period and enjoining the Controller from paying employees for time taken off from work during the period. The trial court found that the plaintiff was a member of an ascertainable class of state employees and that her attorneys had acted not only on her behalf but in the general public interest and on behalf of members of her class. The award of attorneys' fees under the substantial benefit principle was affirmed, notwithstanding that the action has not been brought as a class action.

In an action not unlike that brought by plaintiffs here, this court recently upheld appellants' claim to attorneys' fees under the substantial benefit theory where the action was representative in nature but not a class action. (Woodland Hills Residents Assn. v. City Council of Los Angeles, 75 Cal.App.3d 1, 141 Cal.Rptr. 857.)

Clearly the fact that the action is not a corporate derivative or class action does not prevent application of the substantial benefit principle. Rather, to qualify for use of the principle, a suit must: (1) be one in which the court's equitable powers come into play, (2) be commenced and maintained as a...