Filed 6/8/15 Coalition for a Sustainable Future in Yucaipa v. City of Yucaipa CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



COALITION FOR A SUSTAINABLE
FUTURE IN YUCAIPA,
   Plaintiff and Appellant,                                              E057589
v.
CITY OF YUCAIPA et al.,                                                  (Super.Ct.No. CIVSS708513)
   Defendants and Respondents;
                                                                         OPINION
TARGET STORES, INC.,
   Real Party in Interest and Respondent.




         APPEAL from the Superior Court of San Bernardino County. Donald R. Alvarez,

Judge. Affirmed.

         Leibold McClendon & Mann, John G. McClendon for Plaintiff and Appellant.

         Richards, Watson & Gershon, David M. Snow and Ginetta L. Giovinco for

Defendants and Respondents.

         Holland & Knight, Amanda J. Monchamp and Melaine Sengupta for Real Party in

Interest and Respondent.




                                                             1
       Coalition for a Sustainable Future in Yucaipa (Coalition) filed a petition for writ

of mandate against the City of Yucaipa and its City Council (collectively Yucaipa)

challenging Yucaipa’s approval of Oak Hills Marketplace (Project), a shopping center to

be developed by Target Corporation (Target) on acreage owned by Palmer General

Corporation (Palmer). That petition, filed pursuant to the California Environmental

Quality Act (CEQA) was denied, and Coalition appealed that decision. That appeal

became moot when Target abandoned the Project due to a contract dispute with Palmer.

This Court directed that the order denying mandate be reversed with directions to dismiss

the action with prejudice due to mootness. Coalition then brought a motion for attorneys’

fees in the trial court, asserting that its petition was the catalyst for Yucaipa’s action to

revoke the entitlements. The trial court denied the motion and Coalition appealed again.

       In this appeal, Coalition argues the denial of attorneys’ fees was error because the

mandamus petition was the catalyst motivating Yucaipa to revoke the entitlements, the

relief Coalition had sought in the trial court. We affirm.

                                      BACKGROUND

       In May 2005, Target Corporation entered into a contract with Palmer General

Corporation, the owner of land in the City of Yucaipa to develop a shopping center.

Under the agreement, Target agreed to purchase approximately 60 acres of the land

owned by Palmer, for the development (Project).

       Target applied for a Preliminary Development Plan (PDP) and a General Plan

Amendment for a regional shopping center totaling approximately 613,000 square feet of



                                               2
building space on the acreage. On October 8, 2007, at a meeting of the City Council of

the City of Yucaipa, the Council conditionally approved the PDP and General Plan

Amendment to adopt the land use plan for the planned development district, following an

Environmental Impact Report (EIR). The council’s action required that the PDP

incorporate certain signage standards and other conditions, and accepted the Mitigation

Measures identified in the Final EIR, as well as adoption of a Statement of Overriding

Considerations.

      Target was unable to complete the purchase of the land because Palmer missed

deadlines and failed to complete specified off-site improvements required for the

processing of off-site improvement approvals. On October 29, 2007, Target sued Palmer

for Specific Performance, Breach of Contract, and Breach of Implied Covenant of Good

Faith and Fair Dealing (Contract Action).

      On November 8, 2007, Coalition filed a petition for writ of mandate challenging

Yucaipa’s approval of entitlements, asserting they violated CEQA. Target funded and

defended this CEQA action on behalf of Yucaipa, pursuant to a condition that it

indemnify Yucaipa found in Section 81.0150 of the City of Yucaipa’s Development

Code, which was included in the conditional approval of the Project.

      On October 30, 2008, the trial court issued its ruling on the Petition for Writ of

Mandate. The trial court granted both sides’ requests for judicial notice. This included

the City Council Minutes for Regular Meeting of October 8, 2007, Yucaipa Official Land

Use Districts Map, dated April 24, 2008, General Land Use Element, dated July 2004;



                                            3
City of Yucaipa General Plan, Housing Element, City of Yucaipa General Plan, City of

Yucaipa General Plan Table, II-2, Official Land Use Districts Statistical Chart, dated

September 28, 1992, Yucaipa City Development Code Article 2, Planned Development

Review, Sections 83.030205-83.030230, and the City Development Code Chapter 11,

Regulation of Hillside and/or Ridgeline Developments, Sections 87.1105-87.1180.

Additionally, the court considered several documents found in the Administrative

Record, which are not part of the present record on appeal.

       The court found the Project was consistent with the Housing Element, and

Yucaipa did not abuse its discretion in approving the EIR. The court denied the Petition

for Writ of Mandate. Judgment was entered accordingly, and Coalition appealed, in Case

No. E047624.

       Prior to the filing of the respondent’s brief in that appeal, Yucaipa and Target

moved to dismiss the appeal on the ground of mootness. (Coalition for a Sustainable

Future in Yucaipa v. City of Yucaipa, et al. (2011) 198 Cal.App.4th 939, 941.) Mootness

was based on the fact that Target and Palmer had abandoned the Project due to the

litigation in the contract action. (Ibid.) Target had dismissed the Specific Performance

cause of action of the Contract action, but continued with the claims for damages against

Palmer. It also informed Yucaipa that it no longer had any equitable or legal interest in

the property for which the land use entitlements were approved, or in the entitlements




                                             4
themselves.1 Target then filed the motion to dismiss itself from the CEQA litigation in

the Court of Appeal.

       As a consequence, at a regular city council meeting, Yucaipa revoked the land use

entitlements for the Oak Hills Marketplace project. The Yucaipa Agenda Report explains

that when Target abandoned the Project, the city attorney sought to determine if Palmer

would assume the lead in defending the appeal, but Palmer refused. Because both Target

and Palmer had refused to comply with the conditions of approval, staff had prepared the

necessary ordinance and resolution to repeal the General Plan Land Use District Change,

the PDP, and the certification of the EIR.

       This Court requested supplemental briefing and issued a published decision in

case No. E047624, in which the judgment was reversed as moot, and the trial court was

directed to dismiss the underlying action with prejudice. (Coalition for a Sustainable

Future in Yucaipa v. City of Yucaipa, supra, 198 Cal.App.4th at p. 947.) On December 6,

2011, on remand, the trial court did as directed, ordering the petition for writ of mandate

dismissed with prejudice as to the entire action.



       1 Land use “entitlement” refers to the approval by the City to introduce a new or
expanded land use activity on a particular site. A new or expanded use requires one of
four possible permits or licenses. (http://yucaipa.org/development/community-
development/land-use-entitlement-process/ [as of March 11, 2015].) Conditional use
permits and development approvals are land use entitlements that run with the land.
(Maintain Our Desert Environment v. Town of Apple Valley (2004) 124 Cal.App.4th 430,
444.) The term has also been used in association with project approvals under CEQA.
(See 14 Cal. Code of Reg., §§ 15089-15092; Bakersfield Citizens for Local Control v.
City of Bakersfield (2004) 124 Cal.App.4th 1184, 1221.)


                                             5
       On March 12, 2012, Coalition filed a motion for an award of attorney’s fees

pursuant to Code of Civil Procedure, section 1021.5. Coalition argued that the

mandamus proceeding was the catalyst for Yucaipa’s action of revoking the land use

entitlements, entitling it to attorneys’ fees. On June 4, 2012, the trial court denied the

motion for attorneys’ fees after finding that the litigation was not the catalyst for the

abandonment of the project. Instead, the court determined that the evidence showed that

the Palmer litigation and the failure to secure the real property on which the Project was

to be located were the reasons the developer and Yucaipa elected not to proceed. The

order was filed on August 30, 2012.

       Coalition has now appealed that order.

                                           DISCUSSION

       On appeal, Coalition argues that the court erred in denying its motion for

attorneys’ fees because there is insufficient evidence to support the trial court’s finding

that the mandamus action was not a catalyst for Yucaipa’s rescission of its approval for

the Project. It urges us to find that substantial evidence shows the mandamus proceeding

was the catalyst for Yucaipa’s action. We disagree.

       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




                                              6
discretion.2 (Ebbetts Pass Forest Watch v. Department of Forestry and Fire Protection

(2010) 187 Cal.App.4th 376, 381 (Ebbetts).) Although this standard is deferential, a

court abuses its discretion where no reasonable basis for the action is shown. (Bui v.

Nguyen (2014) 230 Cal. App. 4th 1357, 1367-1368, citing Westside Community for

Independent Living, Inc. v. Obledo (1983) 33 Cal.3d 348, 355.)

       To determine whether the trial court abused its discretion, we must review the

entire record, paying particular attention to the trial court’s stated reasons in denying or

awarding fees and whether it applied the proper standards of law in reaching its decision.

(Bouvia v. County of Los Angeles (1987) 195 Cal.App.3d 1075, 1081–1082.)

       The pertinent question is whether the reasons for the trial court’s denial of an

award are consistent with the substantive law of the Code of Civil Procedure, section

1021.5 and, if so, whether their application to the facts of the case is within the range of

discretion conferred upon the trial courts under the Code of Civil Procedure, section

1021.5, read in light of the purposes and policy of the statute. (Marine Forests Society v.

California Coastal Com. (2008) 160 Cal.App.4th 867, 876-877 (Marine), citing City of

Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1298.)




       2 De novo review is warranted where the determination is based on statutory
construction. (Edna Valley Watch v. County of San Luis Obispo (2011) 197 Cal.App.4th
1312, 1317, citing Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175.)


                                              7
        b.    The Trial Court’s Findings Are Supported by Substantial Evidence and Its

Ruling was a Proper Exercise of Discretion.

        Code of Civil Procedure, section 1021.5 provides in pertinent part: “Upon motion,

a court may award attorneys’ fees to a successful party against one or more opposing

parties in any action which 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, or of enforcement by one public entity against

another public entity, are such as to make the award appropriate, and (c) such fees should

not in the interest of justice be paid out of the recovery, if any.”

        The statute codifies the private attorney general doctrine the Supreme Court

adopted in Serrano v. Priest (1977) 20 Cal.3d 25. It rests upon the recognition that

privately initiated lawsuits are often essential to the effectuation of the fundamental

public policies embodied in constitutional or statutory provisions, and that, without some

mechanism authorizing the award of attorney fees, private actions to enforce such

important public policies will as a practical matter frequently be infeasible. (Healdsburg

Citizens for Sustainable Solutions v. City of Healdsburg (2012) 206 Cal.App.4th 988,

992.)

        Entitlement to fees under Code of Civil Procedure, section 1021.5 requires a

showing that the litigation (1) served to vindicate an important public right; (2) conferred

a significant benefit on the general public or a large class of persons; and (3) was



                                               8
necessary and imposed a financial burden on plaintiffs which was out of proportion to

their individual stake in the matter. (Center for Biological Diversity v. County of San

Bernardino (2010) 188 Cal.App.4th 603, 611.) The section acts as an incentive for the

pursuit of public interest-related litigation that might otherwise have been too costly to

bring. (Id. at pp. 611-612.) The private attorney general theory applies to an action to

enforce provisions of CEQA. (Id. at p. 612, quoting City of Carmel-by-the-Sea v. Board

of Supervisors (1986) 183 Cal.App.3d 229, 254.)

       However, a party seeking an award of Code of Civil Procedure, section 1021.5

attorney fees must first be determined to be “a successful party.” (Ebbetts, supra, 187

Cal.App.4th at p. 381.) A necessary prerequisite to recovery under the statute is the

status of prevailing party. (Miller v. Cal. Comm. on Status of Women (1985) 176

Cal.App.3d 454, 457.) The terms “prevailing party” and “successful party” are

synonymous. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 570 (Graham).)

It is not necessary for plaintiff to achieve a favorable final judgment to qualify for

attorneys’ fees so long as the plaintiff’s actions were the catalyst for the defendant’s

actions, but there must be some relief to which the plaintiff’s actions are causally

connected. (Miller, supra, at pp. 457-458; see also, Cates v. Chiang (2013) 213

Cal.App.4th 791, 806 (Cates).)

       The “catalyst theory” permits an award of fees even when the litigation does not

result in a judicial resolution if the defendant changes its behavior substantially because

of, and in the manner sought by, the litigation. (Marine, supra, 160 Cal.App.4th at p.



                                              9
877.) To obtain attorneys fees under this theory, a plaintiff must establish that (1) the

lawsuit was a catalyst motivating the defendants to provide the primary relief sought; (2)

the lawsuit had merit and achieved its catalytic effect by threat of victory, not by dint of

nuisance and threat of expense; and (3) the plaintiffs reasonably attempted to settle the

litigation prior to filing the lawsuit. (Id., at pp. 877-878, citing Tipton-Whittingham v.

City of Los Angeles (2004) 34 Cal.4th 604, 608.)

       At the very least, a plaintiff must establish the precise factual/legal condition that

it sought to change or affect as a prerequisite for establishing the catalytic effect of its

lawsuit. (Graham, supra, 34 Cal.4th at p. 576.) When the suit is mooted early in its

prosecution, it may generally be established during the attorney fee proceeding by

declarations, or, at the discretion of the trial court, by an abbreviated evidentiary hearing.

(Ibid.) The trial court may review this factual background not only to determine the

lawsuit’s catalytic effect, but also its merits. (Ibid.)

       In Graham, the Supreme Court explained that “[t]he term ‘successful party’ as

ordinarily understood, means the party to ligation that achieves its objectives.” (Graham,

supra, 34 Cal.4th at p. 571.) It went on to explain that if a defendant can be a prevailing

or successful party after a plaintiff has voluntarily dismissed the case against it, a plaintiff

can be considered a prevailing or successful party when it achieves its litigation

objectives by means of defendant’s “voluntary” change in conduct in response to the

litigation. (Id., at p. 572.)




                                               10
       To satisfy the causation prong of the catalyst theory, the plaintiff need not show

that litigation was the only cause of the defendant’s acquiescence, only that it was a

substantial factor contributing to defendant’s action. (Hogar Dulce Hogar v. Community

Development Comm. (2007) 157 Cal.App.4th 1358, 1365 (Hogar); Cates, supra, 213

Cal.App.4th at p. 807.) In other words, it is enough that “but for” the party’s legal action,

the right would not have been vindicated. (Protect our Water v. County of Merced

(2005) 130 Cal.App.4th 488, 495.) When, after litigation is initiated, a defendant has

voluntarily provided the relief a plaintiff is seeking, the chronology of events may raise

an inference that the litigation was the catalyst for the relief. (Hogar, supra, 157

Cal.App.4th at p. 1366.)

       The causation issue may be resolved by relatively economical, straightforward

inquiries by trial judges close to and familiar with the litigation and its determination of

causation is entitled to deference by the appellate court if there is any reasonable basis in

the record to support the determination. (Cates, supra, 213 Cal.App.4th at p. 808.) We

are required to draw all reasonable inferences in support of the findings and view the

record most favorably to the trial court’s conclusion; if there is evidence to support its

finding, we must affirm even if other evidence would support a contrary finding. (Ibid.)

       In the present case, there is evidence to support the trial court’s finding that the

Coalition action was not a substantial factor contributing to the defendant’s action. First,

prior to the date the land use entitlements were revoked, the trial court had entered a

judgment denying the petition for writ of mandate, which was a win for Yucaipa.



                                              11
Coalition did not prevail, but instead appealed the judgment in January 2009. In the

meantime, in August 2009, Target dismissed its Specific Performance cause of action in

the Contract litigation against Palmer This cause of action had sought to enforce the

agreement by Palmer to sell the approximately 60 acres of land to Target and constituted

an abandonment of the development project. The minutes of the Yucaipa City Council

meeting of October 12, 2009, reflect that the motivation for revoking the land use

entitlements for Oak Hills Marketplace was due to the fact that, in the Contract action

between Target and Palmer, Target was dismissed from the lawsuit, withdrawing its

defense under the indemnification agreement, and Palmer declined to take up the defense.

       The Agenda Report submitted in connection with that meeting noted that on

November 21, 2008, the trial court had entered a judgment in favor of Yucaipa on all

causes of action in the Coalition matter, that Coalition had filed an appeal from that

ruling seeking to overturn the ruling while Target and Palmer were also engaged in the

Contract action. Target sought to be dismissed from the CEQA action because it no

longer had any actual or prospective interest in Palmer’s land, which was the subject of

the entitlements, and had no interest in the entitlements granted for the development of

the shopping center. Therefore, staff recommended that the City Council should consider

revoking the entitlements for the project, as there would be no reason for the City to

proceed on its own in defending a project that, for various business and economic

reasons, neither Target nor the Palmers seek to pursue, and for which both have refused

to comply with the conditions of approval. Upon revocation of the entitlements, the



                                             12
repeal of the zoning amendments was necessary “[i]n order to maintain consistency with

the Official Land Use Plan (zoning) and the General Plan.” The CEQA action was not

the but-for cause of the revocation of the entitlements.

       Second, Yucaipa did not change its behavior substantially because of, and in the

manner sought by, the litigation. (Marine, supra, 160 Cal.App.4th at p. 877, italics

added.) Yucaipa had been successful in defending the CEQA action and did not revoke

the entitlements for any reason related to the EIR or any violation of CEQA. It was

Coalition’s burden to prove the nexus between the merits of its action and the reasons for

Yucaipa’s revocation of entitlements, but it failed. The trial court properly found that the

Coalition action was not the catalyst for the revocation of the entitlements. Substantial

evidence supports the trial court’s findings.

       Coalition argues that its action was the “but for” catalyst for Yucaipa setting aside

the EIR and the entitlements because Target’s decision to abandon the project did nothing

to moot the action. The evidence indicates otherwise. Target’s abandonment of the

Project meant the development would not take place; the Project was dead. The

Preliminary Development Plan approval, issued for the development, which formed the

basis for the conditional land use entitlements, was nullified. Therefore, the land use

entitlements were not revoked because the EIR violated CEQA, in the manner sought by

the CEQA action, and was only incidentally related to that litigation. The revocation was

necessary to insure consistency with the General Plan. The CEQA action was not a

substantial factor contributing to Yucaipa’s action.



                                                13
       Coalition also argues that the trial court’s finding that Coalition’s action was the

motivating catalyst showed it applied the incorrect standard, placing emphasis in bold.

However, our reading of the transcript indicates that in reciting its tentative ruling, the

court properly considered “whether the lawsuit can be viewed as a catalyst which

motivated the defendants to provide the relief sought.” It went on to conclude that “The

court does not find that this litigation was a catalyst for the abandonment of the project.”

The court’s reference at the bottom of the page that it could not view “this action as the

motivating catalyst for the abandonment of the project” does not mean it applied the

wrong standard.

       Coalition also argues its action had merit and achieved success by threat of

victory. It calls into question the trial court’s statement that Coalition had not shown that

the appeal would have been meritorious if heard, in urging us to find error. Coalition

misses the point. Its “action” was the CEQA petition, and that petition had been denied

by the trial court’s initial judgment, only to be later dismissed with prejudice. None of

the cases applying the catalyst theory involved situations in which an adverse judgment

had already been rendered against the party seeking attorneys’ fees. Use of the

terminology “meritorious action” in the catalyst theory cases refers to proceedings which

were rendered moot before a judgment on the merits, in order to determine if a party was

the prevailing party where there is no judgment. That did not happen here.

       Further, filing an appeal from the adverse judgment does not convert an

unsuccessful action into a meritorious one. A direction to dismiss the action with



                                              14
prejudice on remand was not a favorable outcome. Having lost twice, Coalition cannot

show “threat of victory.” Here, Coalition lost in the trial court. If it had made a motion

for attorneys’ fees at that point, there is no question that it would not be entitled to

recover.

       Coalition asks us to determine that an appeal from an unfavorable judgment

constituted a catalyst for Yucaipa’s revocation of the land use entitlements. Coalition

attempts to bolster this argument by intimating that the Attorney General planned to

intervene, as evidence of the meritorious nature of its arguments. This argument fails

because there was no evidence of any intended intervention by the Attorney General

aside from counsel’s self-serving hearsay statements. By law, the Attorney General

monitors all CEQA cases. (Pub. Res. Code, § 21167.7.) Indeed, this statute required

Coalition to serve the Attorney General with its pleadings. The fact that Coalition filed

an appeal from the adverse judgment did not convert the action into a meritorious one

under the catalyst theory.

       In any event, the likelihood of a reversal of the trial court’s judgment was

minimal, at best, because on appeal from the denial of its petition for writ of mandate,

just as in the mandate proceedings in the trial court, the judgment was subject to review

for substantial evidence.3 (County of Riverside v. City of Murrieta (1998) 65 Cal.App.4th

       3  Reversal was made an even more remote possibility based on the fact that our
docket shows the Administrative Record was not transmitted to this Court in the prior
appeal, although four volumes of a joint appendix were filed. Because review on the
merits in the prior appeal would have required review of the Administrative Record in
order to determine if there was substantial evidence to support the trial court’s judgment,
                                                                    [footnote continued on next page]


                                              15
616, 620.) This deferential standard of review applies to challenges to the scope of an

EIR’s analysis of a topic, the methodology used for studying an impact and the reliability

or accuracy of the data upon which the EIR relied because these types of challenges

involve factual questions. (Saltonstall v. City of Sacramento (2015) 234 Cal.App.4th

549; see also, Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124

Cal.App.4th 1184, 1198.)

        We have not found a threat of victory in this record. We agree with the trial court

that Coalition was neither a prevailing party nor a catalyst to Yucaipa’s action of

revoking the land use entitlements.

                                           DISPOSITION

        The judgment is affirmed. Costs are awarded to Respondents.

        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                                                   RAMIREZ
                                                                                            P. J.
We concur:

McKINSTER
                                J.

MILLER
                                J.



[footnote continued from previous page]
it is possible that the prior appeal would have been dismissed for an inadequate record.
We note that both parties have referred to the Administrative Record in their respective
briefs in the current matter, but that record is not before us in this appeal, either. It is the
duty of the appellant to present an adequate record to the court from which prejudicial
error may be shown. (Dawson v. Toledano (2003) 109 Cal.App.4th 387, 402; Kurinij v.
Hanna & Morton (1997) 55 Cal.App.4th 853, 865.)


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