Nestande v. Watson

• Decision Date: 14 August 2003
• Docket Number: No. D040605.,D040605.
• Citation: 4 Cal.Rptr.3d 18,111 Cal.App.4th 232
• Court: California Court of Appeals Court of Appeals
• Parties: Bruce NESTANDE et al., Plaintiffs and Respondents, v. Laurence M. WATSON, as County Counsel, etc., et al., Defendants and Respondents; Allan Songstad et al., Real Parties in Interest and Appellants.

4 Cal.Rptr.3d 18

111 Cal.App.4th 232

Bruce NESTANDE et al., Plaintiffs and Respondents, v. Laurence M. WATSON, as County Counsel, etc., et al., Defendants and Respondents Allan Songstad et al., Real Parties in Interest and Appellants.

No. D040605.

Court of Appeal, Fourth District, Division 1.

August 14, 2003.

Rehearing Denied August 29, 2003.

Nossaman, Guthner, Knox & Elliott, Robert D. Thornton, John J. Flynn III, Adam H. Relin, Celena H. Chen, Irvine; Songstad, Randall & Ulich and William D. Coffee, Irvine, for Real Parties In Interest and Appellants.

Benjamin P. deMayo, County Counsel, Steven C. Miller and Nicole A. Sims, Deputy County Counsel, for Defendants and Respondents.

No appearance for Plaintiffs and Respondents.

AARON, J.

I INTRODUCTION

Real parties in interest Allan Songstad et al. appeal from the trial court's orders (1) denying their motion for attorney fees as to former Orange County Registrar of Voters, Roslyn Lever, and former Orange County Counsel, Laurence M. Watson; and (2) granting Lever and Watson's motion to strike costs. Appellants contend that the trial court erred in finding they were not "opposing" or "prevailing" parties against "the county" within the meaning of Code of Civil Procedure¹ sections 1021.5 and 1032. We affirm the trial court's orders denying recovery of attorney fees and costs from "the county."²

II FACTUAL AND PROCEDURAL BACKGROUND

Real parties in interest Allan Songstad et al. (Songstad) are proponents of Measure W, a ballot initiative to amend the Orange County General Plan by designating the former El Toro Marine Corps Air Station (El Toro) for a nature preserve, park, and open space, and to repeal an earlier measure which designated El Toro for civil aviation use. On June 14, 2001, Songstad submitted a request to the Orange County Registrar of Voters for a ballot title and summary, pursuant to Elections Code section 9105. On June 29, 2001, Lever issued a ballot title and summary of the initiative, which had been prepared by the county counsel. The proponents of Measure W then began collecting signatures on petitions containing the ballot title and summary in order to qualify the initiative for the March 2002 ballot.

On July 3, 2001, airport supporters Bruce Nestande and Citizens for Jobs and the Economy (together Nestande) challenged the ballot title and summary in a petition for writ of mandate filed in Orange County Superior Court. The respondents named in the petition were Lever, in her capacity as Orange County Registrar of Voters, and Watson, in his capacity as Orange County Counsel. The entity Orange County was not named in the petition. The petition for writ of mandate named the proponents of the initiative, Songstad, as real parties in interest, and alleged that the ballot title and summary violated the Elections Code because they were false and misleading and not impartial.

Songstad filed an answer to the petition. In the answer, Songstad denied that the ballot title and summary were false or misleading, and asserted that petitioners lacked standing to bring the action. Accordingly, Songstad requested "[t]hat judgment be entered in favor of respondents [the county] and real parties in interest."

County counsel filed a separate answer to the petition on behalf of Lever and Watson. In their answer, Lever and Watson denied the material allegations of the petition and asserted three affirmative defenses. They did not raise lack of standing as a defense. In their prayer for relief, Lever and Watson requested that the petition be denied with prejudice. In an accompanying 12-page memorandum of points and authorities, Lever and Watson defended the ballot title and summary as being "a true and impartial summary of the Initiative" and argued against each of Nestande's factual contentions.

On July 31, 2001, the court held a hearing on the petition. During argument, county counsel initially deferred to counsel for Songstad. County counsel subsequently agreed with the arguments made by counsel for Songstad and argued that the ballot title and summary complied with the requirements of the Elections Code. However, the trial court found the ballot title and summary to be misleading, and granted the petition for writ of mandate.

On August 7, 2001, the Orange County Board of Supervisors held a closed session to discuss the pending litigation, but took no "reportable" action. On the same date, Songstad filed a 50-page petition for writ of mandate in the Court of Appeal, challenging the superior court's order and requesting an immediate stay. In the petition, Songstad again named Lever and Watson as respondents, and Nestande as real parties in interest. Among other arguments, Songstad asserted that Nestande lacked standing to challenge the ballot title and summary. The Supreme Court ordered the matter transferred from Division Three to this court.

On August 14, 2001, the board of supervisors held another closed session to discuss the matter. By a vote of three to two, the supervisors directed county counsel not to appeal the court's order granting the petition for writ of mandate. On the same date, the trial court entered a final judgment granting Nestande's petition and issuing a peremptory writ of mandate directing Watson to amend the ballot title and summary and prohibiting Lever from accepting any petitions containing the original ballot title and summary. Also on the same date, this court ordered Nestande and Lever and Watson to file informal responses to the Songstad petition.

On August 15, 2001, counsel for Songstad wrote a letter notifying this court that September 5, 2001, was the deadline for submission of initiative petitions to the registrar of voters to qualify for the March 2002 ballot. County counsel responded with a letter clarifying that the deadline was September 18, 2001. In his letter, county counsel stated that Lever and Watson took "no position regarding Petitioners' request that this Court stay the Superior Court decision pending a ruling by this Court."

On August 23, 2001, Lever and Watson filed a 15-page response to the Songstad petition. In their response, Lever and Watson concurred with Songstad and asserted that the ballot title and summary complied with the Elections Code and constituted a true and impartial summary of the initiative. Lever and Watson did not argue in their response that Nestande lacked standing to challenge the ballot title and summary.

This court issued an order to show cause why the petition should not be granted, and stayed the trial court's judgment. While the matter was still pending in this court, the registrar of voters certified that the initiative petition had received enough valid signatures to qualify for the March 2002 ballot.

On November 21, 2001, this court granted Songstad's petition in a published opinion and issued a writ of mandate directing the trial court to vacate its order granting Nestande's petition. (Songstad v. Superior Court (2001) 93 Cal.App.4th 1202, 113 Cal.Rptr.2d 729.) The court concluded that Elections Code section 9106 permits only the proponents of an initiative to seek a writ of mandate requiring that a ballot title and summary be amended. The court held that since Nestande was not a proponent of Measure W, they lacked standing to challenge the ballot title and summary. (Songstad v. Superior Court, supra, 93 Cal.App.4th at pp. 1206-1212, 113 Cal.Rptr.2d 729.)

Nestande filed a petition for writ of supersedeas in the California Supreme Court to prevent the initiative from being placed on the March 2002 ballot. The Supreme Court denied the petition.

In the election of March 5, 2002, Measure W passed by a vote of 58 percent to 42 percent. ([as of Aug. 14, 2003].)

On April 19, 2002, Songstad filed a motion for attorney fees and costs, pursuant to section 1021.5. Songstad sought an award of fees and costs against both Nestande and "the county." Lever and Watson filed a motion to strike costs. After holding a hearing on the motions, the trial court granted the motion for attorney fees as to Nestande, but denied it as to "the county."³ The court also granted Lever and Watson's motion to strike costs.

In its order denying attorney fees, the trial court found that "the county" and Songstad were not "opposing parties" within the meaning of section 1021.5. The court reasoned: "At no time did Real Party in Interest [Songstad] prevail against County, who did not oppose their writ petition. The initiative ended up on the ballot exactly as written by the County. Both shared the main objectives of defending the Ballot title and summary and dismissing the trial court's judgment."

III DISCUSSION

A. Standard of Review

The parties agree that a trial court's order denying attorney fees is subject to review under the abuse of discretion standard. Whether a party has met the statutory requirements for an award of attorney fees is a question best decided by the trial court in the first instance. The trial court's judgment may not be disturbed unless the appellate court is convinced that it is clearly wrong and constitutes an abuse of discretion. (Family Planning Specialists Medical Group, Inc. v. Powers (1995) 39 Cal.App.4th 1561, 1567, 46 Cal.Rptr.2d 667; Ciani v. San Diego Trust & Savings Bank (1994) 25 Cal.App.4th 563, 571, 30 Cal.Rptr.2d 581.) The abuse of discretion standard also applies to the trial court's determination of costs. (Heppler v. J.M. Peters Co. (1999) 73 Cal.App.4th 1265, 1298, 87 Cal.Rptr.2d 497.)

Under the abuse of discretion standard, "reversal is required where there is no reasonable basis for the ruling or when the trial court has applied the wrong test to determine if the statutory requirements were satisfied." (Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 634, 71 Cal.Rptr.2d 632.) "`A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is...