Thomas Law Blog

CEQA Updates

Keeping You Up-to-Date on the California Environmental Quality Act

Posts from November, 2018


Tina Thomas Hosts CEQA 2018: A Year In Review Panel at 33rd Annual Land Use Law and Planning Conference

Thursday, November 29th, 2018

On Friday, January 18, 2019 at the Millennium Biltmore Hotel in downtown Los Angeles, Thomas Law Group founder Tina Thomas will host the panel CEQA 2018: A Year in Review as part of UCLA Extension’s 33rd Annual Land Use Law and Planning Conference. 

The conference it presented by UCLA Extension’s Public Policy Program. It focuses on providing practical, timely, and useful information relating to the practice of land use and environmental law, planning and development, and key policy decisions in these areas.

For more information visit: www.uclaextension.edu/33rdLandUseConference 

 

Public Interest Standing Not Automatically Precluded by Commercial Interest, Private Attorney General Doctrine Fee Award Upheld

Wednesday, November 7th, 2018

No billboards are visible from one of the City of Pomona’s busiest highway interchanges. (AARoads)

In Citizens for Amending Proposition L. v. City of Pomona, (2018) Cal.App.LEXIS 1014, the Second District Court of Appeal held an attorneys’ fees award, pursuant to Code of Civil Procedure section 1021.5, was appropriate where a residents’ group’s action to enforce a voter-approved proposition prohibiting additional billboards in the City of Pomona (City) had standing and conferred an important public interest of significant benefit, was necessary, and was financially burdensome for the group.

In May 1993, the City entered into an agreement with Regency Outdoor Advertising, Inc. (Regency) to erect and manage billboards along a City highway. In November 1993, City voters passed a ballot initiative, Proposition L, which prohibited the construction of additional billboards and grandfathered in already-existing agreements. In June 2014, the City’s agreement with Regency expired by its terms while the City was negotiating to extend it. In July 2014, the City and Regency entered into an agreement purporting to amend the 1992 agreement, including construction of digital billboards. Citizens for Amending Proposition L and Vernon Price (Citizens) filed suit against the City alleging that the July agreement was passed in violation of Proposition L.

The trial court held that the July agreement was in fact a new agreement enacted in violation of Proposition L. Because the City did not adopt the agreement until after the original agreement had expired, it was a new agreement subject to the rules, regulations, and official policies in effect at the time of its execution, July 2014.

Citizens moved for attorney’s fees pursuant to Code of Civil Procedure section 1021.5, the private attorney general doctrine. They asked for $189,990, representing 389.8 hours of work at a rate of $500 per hour. They also requested that a multiplier of three be employed in the calculation to account for the complexity of the case, their complete victory, and other factors. Thus, the total fee request was for $569,700. At its discretion, the trial court found that Citizens met the statutory criteria for Section 1021.5 and granted the motion. However, the number of hours billed and the billing rate were found to be excessive. Accordingly, the trial court reduced the award to 250.67 hours at a rate of $300 per hour. The trial court further found that there was no basis for enhancing the fees with a multiplier. As such, the trial court awarded $75,200.40 to Citizens. The City timely appealed the award.

On appeal, the Court reviewed the City’s claim that Citizens lacked standing to bring the mandamus action. The City claimed that Citizens lacked a beneficial interest in the litigation, equivalent to the Federal “injury in fact” test. This must be “direct and substantial.” The Court found no evidence that Citizens experienced any actual, imminent, or particularized invasion of a legally protected interest as a result of the City’s adoption of the ordinance.

The City then claimed that the public interest exception to the beneficial interest requirement did not apply to Citizens’ mandamus action. Public interest standing is established where “the object of the mandamus is to procure the enforcement of a public duty.” Reviewing the trial court’s decision for an abuse of discretion, the Court found that Citizens indeed had public interest standing where “the duty is sharp and the public need [for enforcement] is weighty.” Citizens specifically alleged that the City violated its own municipal law, a claim with a “sharp” public interest. Further, the record showed that, absent Citizens’ intervention in the negotiations, billboards might have been constructed without broad public awareness of any potential issue, thus demonstrating a “weighty public need.”

The Court specifically dismissed the City’s claim that Citizens’ personal interest in the suit precluded standing, as it did for the plaintiffs in Waste Management of Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223. First, there was no evidence that Vernon Price or Citizens for Amending Proposition L advanced a commercial interest in bringing the suit. Vernon Price was an individual living within the City and the group was an unincorporated association of City residents; neither situation demonstrated an individualized interest. Even so, following the holding in SJJC Aviation Services, LLC v. City of San Jose (2017) 12 Cal.App.5th 1043, 1058, the Court held that “a personal objective is one factor the court may consider when weighing the propriety of public interest.” The Court warned that to rule otherwise would be impractical as “truly neutral parties are unlikely to bring citizen suits.”

The Court separately held Citizens for Amending Proposition L had organizational standing. Following the holding in San Francisco Apartment Association v. City and County of San Francisco (2016) 3 Cal.App.5th 463, the Court held that the group had demonstrated “(1) its members otherwise would have standing to sue in their own right; (2) the interests it [sought] to protect [were] pertinent to the association’s purpose; and (3) neither the claim asserted nor the relief requested require[d] participation of the association’s individual members.” Vernon Price, a member of the group, had demonstrated his personal standing, the group’s purpose was to enforce Proposition L, as it did here, and compliance with Proposition L did not require the participation of other group members. Both Vernon Price and Citizens for Amending Proposition L had adequate standing.

The Court then turned to the merits of the appeal and established that Section 1021.5 allows for an award of attorneys’ fees at the discretion of the court where an action 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 …are such to make the award appropriate, and (c) such fees should not, in the interest of justice, be paid out of the recovery, if any.”

Considering this, the moving party must establish “(1) he or she is a ‘successful party,’ (2) the action has resulted in the enforcement of an important right affecting the public interest, (3) the action has conferred a significant benefit on the public or a large class of persons, and (4) an attorney fees award is appropriate in light of the necessity and financial burden of private enforcement.”

Reviewing the trial court decision for an abuse of discretion, and noting the broad deference conferred on the trail court, the Court affirmed the award.

The City contended that Citizens did not vindicate an important public interest, as required under 1021.5. The City argued that the trial court failed to analyze the benefit of the case “from a practical perspective” and did not evaluate the “significance of the benefit to the public.” The Court held that Citizens vindicated an important public right in ensuring that Proposition L was properly enforced, a benefit to the entire City. As such, Citizens conferred an important public interest of significant benefit.

Next, the City contended that the necessity and financial burden requirement was not met, that private enforcement was not necessary, and that the financial burden of private enforcement did not warrant subsidizing the successful party. The Court found that there was “ample” evidence in the record that Citizens’ goal of enforcing Proposition L was not self-serving, but benefitted all City residents. Further, there was no evidence in the record demonstrating that either Vernon Price or Citizens for Amending Proposition L would personally benefit from the July agreement being invalidated. Relying on Arnold v. California Exposition and State Fair (2004) 125 Cal.App.4th 498, a financial interest must be “specific, concrete, and significant and based on objective evidence.” Here, the Court found none. Even if one or both Respondents were competitors of Regency, the Court found there was no financial benefit in seeking the enforcement of the Proposition L prohibition.

The Court affirmed the trial court holding.

Key Point:

Public interest standing is not precluded by a petitioner’s commercial interest in a case where a sharp public interest and weighty public need outweigh an individual interest.

An award of attorney’s fees under the private attorney general doctrine is appropriate where a party conferred an important public interest of significant benefit, the action was necessary, and to bring the action was financially burdensome for the group.