A Petitioner Is Entitled To Attorneys' Fees Under The Public Records Act If The Petitioner Succeeds On Any Significant Issue And Achieves Some Of The Benefit Sought In The Litigation

By Glen Hansen

In Garcia v. Governing Board of Bellflower Unified School District (October 24, 2013, B247320) ___ Cal.App.4th ___ a former employee of the Bellflower Unified School District (“District”) filed an extraordinary writ petition against the District relating to her alleged exposure to mold. Her counsel later served on the District’s counsel in that proceeding a request for records from the District pursuant to the California Public Records Act (Gov. Code, § 6250 et seq.) (“PRA”). The letter listed eight (8) categories of records that were requested pursuant to the PRA. During the next month, the former employee’s counsel sent several additional letters and an email to the District’s counsel because the District did not respond to the original letter request. The District's general counsel finally responded with a letter stating that there were no documents responsive to four of the requests, that two of the requests were overly broad and vague, and that documents responsive to two of the requests were exempt from disclosure. The former employee’s counsel then sent a ‘meet and confer’ letter to the District’s general counsel disputing the District's objections and responses. But when the District did not respond to that letter, the former employee commenced mandamus proceeding seeking to compel the District to comply with the PRA. 

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Compliance with Trial Court Writ Renders Moot an Appeal on the Merits

By William W. Abbott

No one ever said planning was easy. In 2002, the City of Redondo Beach approved a coastal zone ordinance for the significant revitalization and intensification for its harbor area, a plan proposal known as “Heart of the City”. Residents opposed to the proposal, qualified a referendum and the city council repealed the coastal ordinance and reinstated the prior harbor plan. From 2005 to 2008, the council adopted updated planning documents for this area, however, the amendments were subject to review and approval by the Coastal Commission pursuant to the Coastal Act. Concurrently, the voters were circulating an initiative measure which would have required voter approval for major land use changes. This measure was eventually placed on the ballot and approved by the voters in November 2008. The city had submitted its harbor area coastal planning documents to the Commission in May 2008, and Commission, after review, indicated that the city documents, subject to conforming amendments identified by the Commission, could be found to conform to the Coastal Act and certified. In 2010, the city adopted the conforming amendments, determined that only certain elements were subject to voter approval, and committed to an election at a future unspecified date. Building a Better Redondo Beach, Inc. (“BBR”) filed suit to compel the city to place the full measure on the ballot for voter approval. After a trial, the court order the matter be placed on the ballot. Following entry of judgment, the city promptly filed a notice of appeal, but then the city council took action to order the Planning Department onto the ballot, where it was approved by the voters three months later. Following entry of judgment, BBR moved for an award of attorneys’ fees as permitted by Code of Civil Procedure section 1021.5. The court awarded BBR $313,000 in attorneys’ fees. The city appealed the award.

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Code of Civil Procedure §1021.5 Authorizes a Prevailing Party to Recover Its Attorney Fees for Administrative Time As Well As in Litigation

By William W. Abbott

In CEQA and land use litigation, project opponents who prevail in court will seek attorneys’ fees as authorized by Code of Civil Procedure section 1021.5. This code section grants a trial court the discretion to award fees in appropriate situations. In circumstances in which the opponents must first exhaust administrative remedies before filing suit, can the successful party also recover fees for the administrative time? A recent appellate decision answers the question with a "yes".

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The Devil is in the Details... At Least When it Comes to Interpreting the School Facilities Act

By Cori M. Badgley

The court in Chawanakee Unified School District v. County of Madera (2011, No. F059382) ____ Cal.App.4th ____ faced the difficult task of interpreting an amendment to the School Facilities Act and how it interacts with CEQA as an issue of first impression. The specific provision at issue restricts the “methods of considering and mitigating impacts on school facilities” to the fees provided in the School Facilities Act. (Gov. Code, § 65996(a).) The court held that although this provision obviated the need to discuss direct impacts on school facilities in the CEQA document, the provision did not apply to indirect impacts, such as traffic or construction.

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Bad Deeds Make Bad Law

By Cori Badgley and Emilio Camacho

In Monterey/Santa Cruz County Bldg. & Constr. Trades Council v. Cypress Marina Heights LP (2011) 191 Cal.App.4th 1500, the California Court of Appeal, Sixth District, held that deeds acquiring property from a redevelopment agency required the purchaser/developer to pay prevailing wages to the construction workers. In addition, the appellate court also held that plaintiffs were entitled to $73,167.50 in attorney’s fees pursuant to Code of Civil Procedure section 1021.5.

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Money, Money, Money: Pacific Lumber Co. Litigation Ends in Battle over Attorney's Fees

By Cori Badgley

The long legal battle over Pacific Lumber Company’s logging of timberland in Humboldt County continues as the parties now fight over attorney’s fees. In Environmental Protection Information Center v. California Department of Forestry and Fire Protection (2008) 44 Cal.4th 459, the Supreme Court finally resolved all of the substantive issues on the merits. In summary, the Supreme Court set aside the department’s approval of a sustained yield plan based on two of petitioner’s arguments, invalidated a portion of the incidental take permit, and upheld the department’s streambed alteration agreement and certification of the environmental impact report/environmental impact statement. Following the Supreme Court’s decision, the matter was remanded back to the appellate court, and the appellate court heard arguments on whether petitioner was entitled to attorney’s fees and in what amount. (Environmental Protection Information Center v. California Department of Forestry and Fire Protection (2010) 190 Cal.App.4th 217.)

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REMINDER! Save the Date!

Abbott & Kindermann’s Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of three seminars taking place in 2011.

In January and February 2011 Abbott & Kindermann, LLP will present its annual complimentary educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, real estate acquisition, easements, leasing and property acquisition, and mining.  In addition, the following hot topics for 2011 will be discussed:

  • Global Warming: CEQA Guidelines, Mandatory Reporting, AB 32 
  • Water Supply Assessments
  • CEQA Litigation: Exemptions, Setting the Baseline, Alternative Analysis & Exhaustion of Administrative Remedies
  • Subdivision Map Extensions
  • Interpreting Development Agreements
  • Agricultural Land Mitigation
  • New General Permit Under Clean Water Act

Abbott & Kindermann, LLP will be presenting its annual program at three California locations, Sacramento, Modesto and Redding. Details for the seminars are below. We hope you can join us and look forward to seeing you there.

Modesto Conference

  • Date: Thursday, January 20, 2011
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Redding Conference 

  • Date: Tuesday, February 8, 2011
  • Location: Hilton Garden Inn Redding , 5050 Bechelli Lane
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference

  • Date: Friday, February 11, 2011
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast
  • Program: 9:00 a.m. - 12:00 noon

There is no charge for the programs and MCLE and AICP CM credits are available. 

An RSVP will be required as space is limited. To reserve a spot, call our office at (916) 456-9595. When calling, please specify which conference you will be attending.

Save the Date!

Abbott & Kindermann’s Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of three seminars taking place in 2011.

In January and February 2011 Abbott & Kindermann, LLP will present its annual complimentary educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, real estate acquisition, easements, leasing and property acquisition, and mining.  In addition, the following hot topics for 2011 will be discussed:

  • Global Warming: CEQA Guidelines, Mandatory Reporting, AB 32 
  • Water Supply Assessments
  • CEQA Litigation: Exemptions, Setting the Baseline, Alternative Analysis & Exhaustion of Administrative Remedies
  • Subdivision Map Extensions
  • Interpreting Development Agreements
  • Agricultural Land Mitigation
  • New General Permit Under Clean Water Act

Abbott & Kindermann, LLP will be presenting its annual program at three California locations, Sacramento, Modesto and Redding. Details for the seminars are below. We hope you can join us and look forward to seeing you there.

Modesto Conference

  • Date: Thursday, January 20, 2011
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Redding Conference 

  • Date: Tuesday, February 8, 2011
  • Location: Hilton Garden Inn Redding , 5050 Bechelli Lane
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference

  • Date: Friday, February 11, 2011
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast
  • Program: 9:00 a.m. - 12:00 noon

There is no charge for the programs and MCLE and AICP CM credits are available. 

An RSVP will be required as space is limited. To reserve a spot, call our office at (916) 456-9595. When calling, please specify which conference you will be attending.

Reminder! Save the Date

Abbott & Kindermann’s Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of three seminars taking place in 2010!

In January and February 2010 Abbott & Kindermann, LLP will present its annual complimentary educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, real estate acquisition, easements, leasing and property acquisition, and mining.  In addition, the following hot topics for 2010 will be discussed:

  • Global Warming: CEQA Guidelines, Mandatory Reporting
  • Water Supply Legislation
  • CEQA Litigation: Alternative Analysis & Exhaustion of Administrative Remedies
  • Subdivision Map Extension
  • Interpreting Development Agreements
  • Endangered Species Act

Abbott & Kindermann, LLP will be presenting its annual program at three California locations: Sacramento, Modesto and Redding. Details for the seminars are below. We hope you can join us and look forward to seeing you there.

Modesto Conference

  • Date: Thursday, January 21, 2010
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Redding Conference 

  • Date: Thursday, January 28, 2010
  • Location: Hilton Garden Inn Redding , 5050 Bechelli Lane
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference

  • Date: Friday, February 12, 2010
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast
  • Program: 9:00 a.m. - 12:00 noon

There is no charge for the programs and MCLE and AICP CM credits are available.

An RSVP will be required as space is limited. To reserve a spot, call our office at (916) 456-9595. When calling, please specify which conference you will be attending.

 

Limits on Attorneys' Fees Awards Under Government Code Section 25845 are ... Limited.

By Glen C. Hansen

In County of Sacramento v. Sandison (May 29, 2009) 174 Cal.App.4th 646, the Court of Appeal of California, Third Appellate District, held that the limitation on attorneys’ fees awards in Government Code section 25845, subdivision (c), does not apply to awards granted under Civil Code section 1717, and Code of Civil Procedure sections 1032, 1033.5, based on an attorneys’ fees provision in a written contract.

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Attorney's Fees in CEQA Cases: Hardly a Gamble Anymore

By Katherine J. Hart

The Riverwatch, et al. v. County of San Diego Department of Environmental Health, et al. (1989) 214 Cal.App.3d 1438 case involves the battle over attorney fees awarded to Petitioners by the trial court pursuant to Code of Civil Procedure section 1021.5, and proves that the courts are continuing the trend in awarding fees even for partially prevailing parties.

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How Much Equitable Discretion Does a Trial Court Have in Deciding to Award Attorneys' Fees When Litigation Results are Mixed?

By Glen Hansen

In Silver Creek, LLC v. Blackrock Realty Advisors, Inc. (May 20, 2009) 173 Cal.App.4th 1533, the California Court of Appeal for the Fourth Appellate District held that the trial court abused its discretion when it decided there was no prevailing party on a contract for purposes of awarding attorney's fees under Civil Code section 1717, subdivision (b), because the record clearly revealed that one party obtained greater relief on the contract in this mixed result case.

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Making Change, But Losing The Dollars

By Glen C. Hansen

Only in California can you (1) pay taxes to create and support an unconstitutional agency, (2) pay taxes so that the unconstitutional agency defends itself, (3) win a ruling on the unconstitutionality, (4) force a legislative change, and (5) retain the privilege of paying for your own attorneys fees. Who says government is broken? Continue Reading...

Friends Don't Let Friends Pay Attorney's Fees

by Elias E. Guzman

In Connerly v. State Personnel Board (2006) 37 Cal.4th 1169, the California Supreme Court recently held that amicus curiae were not liable for private attorney general fees because they were not an "opposing party" under Code of Civil Procedure section 1021.5. This opinion provides significant protection to an amicus curiae from having to pay attorney's fees under the private attorney general statute.

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Quit While You're Ahead

by Joel Ellinwood, AICP

A recently published case illustrates that there is danger in investing too much in a sense of righteous indignation about the perceived abuse of CEQA in delaying public projects. Ramona Unified School District v. Tsinkas (2005) 135 Cal.App.4th 510.

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Attorney's Fees Recovery by Losing Plaintiffs?

Are "losing" plaintiffs eligible to recover attorney's fees under the private attorney general statute? According to Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173, a recent decision from the First District Court of Appeal, the answer may be yes. Plaintiffs won their initial due process claim in superior court when the court found that they did not receive a fair hearing during their opposition to a proposed development project. After the City held another hearing and re-approved the project, the superior court denied the rest of plaintiffs' claims and found for the City. This decision was affirmed on appeal in Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572, and was discussed in a November 2004 Abbott & Kindermann article.

The superior court subsequently awarded over $18,000 in attorney's fees to the plaintiffs pursuant to the Code of Civil Procedure section 1021.5. On appeal, the City protested that plaintiffs' "real concerns" were their interests in the project and not the procedural due process claims. The appellate court disagreed and held that attorney's fees are recoverable: 1) by a successful party, 2) in an action that enforces an important public interest right, 3) if a significant benefit has been conferred on the public, and 4) the financial burden makes an award appropriate. Even though the plaintiffs lost in the traditional sense because the project was ultimately approved, the Court of Appeal found that they were a successful party under the statute and ordered the City to pay attorney's fees.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.