Ebbetts Pass Forest Watch v. Cal. Dept. of Forestry and Fire Prot.

• Decision Date: 10 November 2010
• Docket Number: No. F058062.,F058062.
• Citation: 114 Cal.Rptr.3d 351,187 Cal.App.4th 376
• Court: California Court of Appeals Court of Appeals
• Parties: EBBETTS PASS FOREST WATCH et al., Plaintiffs and Appellants, v. CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION, Defendant and Respondent; Sierra Pacific Industries, Real Party in Interest and Respondent.

187 Cal.App.4th 376 114 Cal.Rptr.3d 351 EBBETTS PASS FOREST WATCH et al., Plaintiffs and Appellants, v. CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION, Defendant and Respondent; Sierra Pacific Industries, Real Party in Interest and Respondent. No. F058062. Court of Appeal, Fifth District, California. Aug. 10, 2010. Review Denied Nov. 10, 2010.

Lippe Gaffney Wagner, Thomas N. Lippe, San Francisco, and John H. Curran for Plaintiffs and Appellants.

Edmund G. Brown, Jr., Attorney General, and William Jenkins, Deputy Attorney General, for Defendant and Respondent.

Morrison & Foerster, Edgar B. Washburn and William M. Sloan, San Francisco, for Real Party in Interest and Respondent.

OPINION

ARDAIZ, P.J.

This case presents the issue of what constitutes a successful party under the private attorney general doctrine contained in Code of Civil Procedure section 1021.5.

Sierra Pacific Industries (SPI) submitted and California Department of Forestry and Fire Protection (CDF) approved three timber harvest plans (Plans) for logging in Tuolumne County. Two conservation groups, Ebbetts Pass Forest Watch and the Central Sierra Environmental Resource Center (plaintiffs) sought to overturn the approvals contending that CDF had not followed the law in approving the Plans. The California Supreme Court upheld the Plans finding they did not suffer from the asserted legal flaws plaintiffs identify and plaintiffs were not entitled to relief. ( Ebbetts Pass Forest Watch v. California Dept. of Forestry Fire Protection (2008) 43 Cal.4th 936, 958, 77 Cal.Rptr.3d 239, 183 P.3d 1210 ( Ebbetts Pass )). Despite this defeat, plaintiffs contend they are the "successful party" entitled to attorney fees of $250,819 under the private attorney general doctrine contained in Code of Civil Procedure section 1021.5 (§ 1021.5).¹ The trial court disagreed anddenied the fee request. We will affirm. In our view, the granting of attorneys fees under the private attorney general doctrine would be an unwarranted expansion of section 1021.5. For the reasons stated infra, we conclude plaintiffs were not "successful" within the meaning of that provision and have not justified fees pursuant to that statute.

FACTS AND PROCEDURAL HISTORY

In May 2002, plaintiffs filed a petition for writ of mandate and asserted the Plans failed to comply with the Z'bergNejedly Forest Practice Act of 1973; (FPA) ² the rules promulgated by the Board of Forestry under the Forest Practice Act,³ and the California Environmental Quality Act (CEQA). ⁴ Specifically, the petition alleged that CDF had failed (1) to assess the cumulative impacts on sensitive wildlife species on a regional basis, ⁵ and (2) to assess adequately the potential significant impacts of herbicide useassociated with the Plans. The prayer for relief requested (1) a peremptory writ of mandate ordering CDF to withdraw approval of the Plans, and (2) a permanent injunction enjoining the proposed timber operations until the Plans complied with California regulations and statutes. The prayer included a catch-all request for "such other and further relief as the court deems proper," but did not include a request for declaratory relief, such as a declaration of CDF's authority and duty to analyze herbicide use.

In March 2003, the trial court denied plaintiffs' petition for a writ of mandate. The court found CDF did not act in excess of its jurisdiction in approving the Plans, the approval was supported by the findings and the findings were supported by substantial evidence in the record. This court's 2006 decision reversed the superior court and directed it to issue the writ of mandate.

In 2008, the California Supreme Court reversed the judgment of the Court of Appeal and remanded the matter for further proceedings. ( Ebbetts Pass, supra, 43 Cal.4th at p. 958, 77 Cal.Rptr.3d 239, 183 P.3d 1210.) On remand, this court affirmed the trial court's denial of plaintiffs' petition for writ of mandate.

Subsequently, plaintiffs filed a motion for attorney fees under section 1021.5 and claimed they were a successful party because the published decision of the California Supreme Court clarified the law regarding CDF's authority and duty to analyze herbicide use. The motion asserted counsel had expended a total of 845.6 hours in the matter and that time was worth $374,357. Plaintiffs argued that, after a reasonable adjustment, they should be awarded attorney fees in the amount of $250,819. The trial court denied the motion and plaintiffs filed a timely notice of appeal.

DISCUSSION

Section 1021.5 Attorney Fees Awards

Plaintiffs contend they were a successful party for purposes of section 1021.5 because they succeeded on their herbicide claims. SPI and CDF counter that plaintiffswere not a successful party because they failed on every claim asserted, judgment was entered against them and costs were awarded to CDF.

A. Standard of Review

Generally, whether a party has met the statutory requirements for an award of attorney fees is best decided by the trial court, whose decision we review for abuse of discretion. ( Nestande v. Watson (2003) 111 Cal.App.4th 232, 238, 4 Cal.Rptr.3d 18.) On review, we focus on whether the court applied the proper legal standards under section 1021.5 and, if so, whether the result was within the range of the court's discretion. ( Marine Forests Society v. California Coastal Com. (2008) 160 Cal.App.4th 867, 876, 74 Cal.Rptr.3d 32.) When an appellate court issues an opinion, it is arguably in as good a position as the trial court to determine whether the legal right enforced through its opinion meets any of the three criteria of section 1021.5. ( Protect Our Water v. County of Merced (2005) 130 Cal.App.4th 488, 494, 30 Cal.Rptr.3d 202.) In this case, however, it is not the appellate courts' opinion that resolved the lawsuit. Rather, the Supreme Court's opinion, which reversed the appellate court's opinion, is the relevant document for determining whether plaintiffs met the statutory requirements entitling them to attorney fees. Therefore, we will review the trial court's decision to deny attorney fees for abuse of discretion.

B. Statutory Elements

Section 1021.5 codifies the private attorney general doctrine, which provides an exception to the " 'American rule' " that each party bears its own attorney fees. ( Olson v. Automobile Club of Southern California (2008) 42 Cal.4th 1142, 1147, 74 Cal.Rptr.3d 81, 179 P.3d 882.) The fundamental objective of the private attorney general doctrine is to encourage suits enforcing important public policies by providing substantial attorney fees to successful litigants in such cases. ( Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 565, 21 Cal.Rptr.3d 331, 101 P.3d 140.) Under section 1021.5, the court may award attorney fees to (1) a successful party in any action (2) that has resulted in the enforcement of an important right affecting the public interest (3) if a significant benefit has been conferred on the general public or a large class of persons, and (4) the necessity and financial burden of private enforcement are such as to make the award appropriate. ( Ibid.) The burden is on the claimant to establish each prerequisite to an award of attorney fees under section 1021.5. ( Serrano v. Stefan Merli Plastering Co., Inc. (2010) 184 Cal.App.4th 178, 185, 108 Cal.Rptr.3d 777.)

i. Successful Party

A party seeking an award of section 1021.5 attorney fees must first be "a successful party." A favorable final judgment is not necessary; the critical fact is the impact of the action.( Graham v. DaimlerChrysler Corp., supra, 34 Cal.4th at p. 565, 21 Cal.Rptr.3d 331, 101 P.3d 140.) Plaintiffs may be considered successful if they succeed on any significant issue in the litigation that achieves some of the benefit they sought in bringing suit. ( Maria P. v. Riles (1987) 43 Cal.3d 1281, 1292, 240 Cal.Rptr. 872, 743 P.2d 932.) But, there must be some qualitative selectivity because section 1021.5 specifically refers to litigation that vindicates "important" rights. It does not encompass the enforcement of "any" or "all" statutory rights. ( Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 935, 154 Cal.Rptr. 503, 593 P.2d 200.) Thus, in determining whether a party is successful, the court must critically analyze the surrounding circumstances of the litigation and pragmaticallyassess the gains achieved by the action. ( Concerned Citizens of La Habra v. City of La Habra (2005) 131 Cal.App.4th 329, 334, 31 Cal.Rptr.3d 599 ( Concerned Citizens ).)

C. Case Law

Plaintiffs rely on two cases, which they contend support their fee request. In Harbor v. Deukmejian (1987) 43 Cal.3d 1078, 240 Cal.Rptr. 569, 742 P.2d 1290 ( Harbor ), petitioners sought a peremptory writ of mandate and challenged the Governor's constitutional authority to veto a single provision of a bill containing 71 sections enacting, amending and repealing numerous provisions in numerous codes. ( Id. at p. 1083, 240 Cal.Rptr. 569, 742 P.2d 1290.) The Supreme Court, agreeing with petitioners, held that the Governor was without authority to exercise a line-item veto because the provision stricken did not constitute an appropriation. ( Id. at pp. 1089-1093, 240 Cal.Rptr. 569, 742 P.2d 1290.) The Court also held that the bill violated the single subject rule, and the Governor would have had the authority to veto the section at issue had it been properly enacted as a separate bill. ( Id. at pp. 1101-1102, 240 Cal.Rptr. 569, 742 P.2d 1290.) The court noted that retroactive application of that ruling, however, would open the door to challenges of many other provisions of substantive law contained in similar acts. Thus, both rulings would be applied prospectively. As a result, the court denied petitioners relief. ( Ibid.) The court held, however, that petitioners were entitled to attorney fees under section 1021.5. They were the successful party because the Court's decision vindicated the principle upon...