Filed 11/17/14 AG Land Trust v. Marina Coast Water Dist. CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


AG LAND TRUST,                                                       H039559
                                                                    (Monterey County
          Plaintiff and Respondent,                                  Super. Ct. No. M105019)

          v.

MARINA COAST WATER DISTRICT,

          Defendant and Appellant.


                                              I. INTRODUCTION
          In this CEQA1 action, respondent Ag Land Trust, a nonprofit group interested in
preserving Monterey County farmland, challenged Marina Coast Water District’s
approval of the Regional Desalination Project by filing a petition for a writ of mandate in
the superior court. After a court trial, the trial court granted the first amended petition for
writ of mandate, entered judgment in Ag Land Trust’s favor, and issued a peremptory
writ of mandate directing Marina Coast Water District (Marina Coast) to set aside its
approval of the Regional Desalination Project.
          Marina Coast appealed and in this court’s prior decision, Ag Land Trust v. Marina
Coast Water Dist. (Aug. 26, 2013, H038550) [nonpub. opn.] (Ag Land Trust I), the
appeal was determined to be moot. This court also determined that the appropriate


          1
              California Environmental Quality Act, Public Resources Code section 21000
et seq.
disposition under the circumstances was to reverse the judgment with directions to the
trial court to dismiss the petition for a writ of mandate as moot. (See Paul v. Milk
Depots, Inc. (1964) 62 Cal.2d 129, 134 (Paul); Coalition for a Sustainable Future in
Yucaipa v. City of Yucaipa (2011) 198 Cal.App.4th 939, 944-945 (Coalition for a
Sustainable Future).)
       While Marina Coast’s appeal from the judgment was pending, the trial court
granted Ag Land Trust’s motion for private attorney general’s fees pursuant to Code of
Civil Procedure section 1021.5.2 In its February 6, 2013 order, the trial court found that
all of the statutory criteria for an award of attorney’s fees under section 1021.5 had been
met and awarded Ag Land Trust a total of $1,285,510.90 in attorney’s fees.
       Marina Coast now appeals the postjudgment award of attorney’s fees on the
primary ground that this court’s reversal of the judgment requires reversal of the
attorney’s fees order. We agree that reversal of the judgment requires reversal of the
attorney’s fees order. However, for reasons that we will explain, we will remand the
matter and direct the trial court to exercise its discretion under the standard stated by the
California Supreme Court in Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553
(Graham) for an award of section 1021.5 private attorney general’s fees to a
nonprevailing plaintiff under the catalyst theory.
                II. FACTUAL AND PROCEDURAL BACKGROUND
       A. Ag Land Trust’s Petition for a Writ of Mandate
       Ag Land Trust is a self-described “California nonprofit public benefit corporation
created with the intent to preserve Monterey County farmland . . . .”3 In April 2010,


       2
         All further statutory references are to the Code of Civil Procedure unless
otherwise indicated.
       3
         On our own motion, we take judicial notice of our prior opinion in Ag Land
Trust I, supra, H038550. (Evid. Code, § 452, subd. (d)(1).) Some portions of the factual
and procedural background have been taken from our prior opinion.

                                              2
Ag Land Trust filed its first amended petition for a writ of mandate against respondent
Marina Coast. In its petition, Ag Land Trust asserted that Marina Coast had formally
approved the Regional Desalination Project on April 5, 2010, in reliance on the final
environmental impact report (EIR) certified by the California Public Utilities
Commission (PUC) in 2009 and a March 2010 addendum. Ag Land Trust sought
declaratory relief, consisting of a declaration that Marina Coast had a duty to identify or
obtain water rights for the Regional Desalination Project and a declaration that the
Regional Desalination Project would violate the Monterey County Water Resources
Agency Act. Additionally, Ag Land Trust sought a peremptory writ of mandate directing
Marina Coast to set aside its approvals of the Regional Desalination Project and to
prepare a legally adequate EIR in compliance with CEQA.
       B. The Trial Court’s Statement of Decision and Judgment
       A court trial on Ag Land Trust’s petition for writ of mandate was held on
October 27, 2011. The trial court’s amended statement of decision granting the petition
was filed on February 2, 2012. The court found that (1) the final EIR is deficient because
Marina Coast, not the PUC, was the lead agency under CEQA for the Regional
Desalination Project since Marina Coast was the first to approve the project; (2) the final
EIR is inadequate because it did not include a discussion of the availability of
groundwater for the Regional Desalination Project and assumes that groundwater rights
will be perfected in the future; (3) the trial court had jurisdiction over the matter since the
PUC did not have authority to regulate Marina Coast with respect to the Regional
Desalination Project; and (4) the Water Resources Agency and California American
Water Company (Cal-Am), a corporation regulated by the PUC that was a participant in
the Regional Desalination Project, were not indispensible parties.
       The judgment granting the first amended petition for writ of mandate and ordering
issuance of a peremptory writ of mandate was filed on April 17, 2012. The judgment
also included the trial court’s findings, as follows: “The Court FINDS AND

                                               3
DETERMINES that Marina Coast Water District prejudicially abused its discretion and
failed to proceed in the manner required by law in making its approvals of the Regional
Desalination Project on March 16, 2010 and April 5, 2010, by proceeding as a
responsible agency rather than as a lead agency, by failing to properly analyze the
environment impact report as a lead agency under CEQA, and by failing to properly and
adequately identify, discuss, and address the environmental impacts of the project,
including but not limited to water rights, contingency plan, assumption of constant
pumping, exportation of groundwater from the Salinas Valley Groundwater Basin, brine
impacts, impacts on overlying and adjacent properties, and water quality, as required here
for a lead agency under CEQA.” The court reserved jurisdiction over Ag Land Trust’s
claim for an award of private attorney general fees and costs under section 1021.5.
       On April 17, 2012, the trial court issued a peremptory writ of mandate directing
Marina Coast to “[v]acate and set aside its March 16, 2010 and April 5, 2010 approvals
of the Regional Desalination Project, and each step approved by [Marina Coast] pursuant
to . . . section 21168.9, subdivision (a). Further action to approve the project beyond
setting aside and vacating these approvals by [Marina Coast] shall not be taken, except in
accordance with the Judgment Granting First Amended Petition for Writ of Mandate
([CEQA]) and Ordering Issuance of Peremptory Writ of Mandate.” The peremptory writ
of mandate also directed Marina Coast to prepare a legally adequate EIR and to otherwise
comply with CEQA in any subsequent action to approve the project.
       C. Ag Land Trust I
       In June 2012, Marina Coast filed a timely notice of appeal from the judgment.
On our own motion, we took judicial notice (Evid. Code, §§ 459, 452, subd. (c)) of the
July 12, 2012 decision of the PUC (Application of California-American Water Company
(2012) Cal. P.U.C. Dec. No. 12-07-008 [2012 Cal.PUC LEXIS 300], p. *28 (Decision
No. 12-17-008)). In its decision, the PUC found that Cal-Am had withdrawn its support



                                             4
of the project. The PUC also found that the Regional Desalination Project “has no
reasonable prospect of achieving its goals.” (Id. at p. *28.)
         Since it appeared that Cal-Am’s withdrawal was potentially fatal to the Regional
Desalination Project, we asked the parties to submit supplemental briefing addressing the
issue of whether the appeal must be dismissed because the PUC’s action had rendered the
appeal moot. In their supplement briefing, the parties agreed that the Regional
Desalination Project would “ ‘not go forward.’ ” (Ag Land Trust I, supra, H038550 at
p. 7.)
         In Ag Land Trust I, our prior decision in this case (filed August 26, 2013), this
court determined that the appeal was moot because the Regional Desalination Project
would not be implemented. (See, e.g., Coalition for a Sustainable Future, supra,
198 Cal.App.4th at p. 941.) This court also declined the parties’ invitation to issue an
advisory opinion on the adequacy of the EIR and the other issues raised in the appeal
with respect to the Regional Desalination Project.
         Additionally, this court determined that a disposition under the rule of Paul, supra,
62 Cal.2d at pages 134-135, rather than a simple dismissal of the appeal, was appropriate.
“Reversal with directions to the trial court to dismiss is the equivalent of dismissal of the
appeal, but avoids the ambiguity of the latter procedure which does not dispose of a
subsisting trial court judgment in a case wherein the issues are moot.” (Bell v. Board of
Supervisors (1976) 55 Cal.App.3d 629, 637.) Accordingly, this court reversed the
judgment and remanded the matter with directions to the trial court to dismiss the petition
for writ of mandate as moot.
         The Ag Land Trust I decision expressed no opinion regarding the pending appeal
of the February 6, 2013 order awarding attorney’s fees to Ag Land Trust. That appeal is
now before us.




                                               5
       D. Ag Land Trust’s Motion for Attorney’s Fees
       In October 2012, before this court’s decision in Ag Land Trust I was filed on
August 26, 2013, Ag Land Trust filed a motion for an order awarding attorney’s fees
under section 1021.5.4 Ag Land Trust argued that it met the statutory criteria for an
award of private attorney general’s fees because (1) it was undisputed that it was the
successful party in the CEQA action; (2) its CEQA action had enforced an important
right affecting the public interest; (3) a significant benefit had been conferred upon the
general public or a large class of persons; and (4) the necessity and financial burden of
private enforcement made an award of attorney’s fees appropriate.
       In support of its argument, Ag Land Trust asserted that its CEQA action had
enforced an important right affecting the public interest because the action ensured that
the Regional Desalination Project would not go forward without evaluating the project’s
environment impacts, and also facilitated public discourse about a controversial project
and the future of water supply on the Monterey Peninsula. The CEQA action also
conferred a significant benefit on the general public or a large class of persons, according
to Ag Land Trust, by preserving the public review process for the next proposed water
project. Ag Land Trust further asserted that an award of attorney’s fees was appropriate
because no public agency had brought a CEQA challenge to the Regional Desalination
Project and therefore private enforcement was necessary. In seeking an award of
attorney’s fees, Ag Land Trust sought to be compensated for the financial burden placed
upon it as a nonprofit corporation that had litigated the CEQA action for several years.

       4
          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.”

                                              6
       For these reasons, Ag Land Trust requested an award of reasonable attorney’s fees
in the lodestar5 amount of $917,094 plus an enhancement multiplier of 1.25 to 1.50 and
attorney’s fees on the fee motion. The request for attorney’s fees was supported with a
summary of the lodestar hours for each of Ag Land Trust’s attorneys, as well as their
declarations, the declaration of the president of Ag Land Trust’s board of directors, and
the expert declarations of two attorneys who were experienced in CEQA litigation.
       E. Marina Coast’s Opposition
       In its opposition to Ag Land Trust’s attorney’s fees motion, Marina Coast disputed
Ag Land Trust’s assertions that it had satisfied the statutory criteria for an award of
private attorney general’s fees under section 1021.5. According to Marina Coast,
Ag Land Trust’s CEQA action did not confer a significant benefit on the community at
large because, rather than ensuring compliance with CEQA, the action served to delay
implementation of a solution to Cal-Am’s illegal withdrawals of water from the Carmel
River. Marina Coast also argued that the action did not facilitate either public discourse
or the integrity of environmental planning, since the Regional Desalination Project had
been the subject of “[h]undreds, if not thousands” of public comments on the draft EIR.
       Marina Coast challenged the amount of the attorney’s fees claimed by Ag Land
Trust on the grounds that the lodestar hours and billing rates were unreasonable,
participation in PUC proceedings was not compensable under section 1021.5,
unnecessary and unsupported charges were included, and an enhancement multiplier was
not justified.
       F. Attorney’s Fees Order
       The trial court granted Ag Land Trust’s attorney’s fees motion in its February 6,
2013 order after hearing and awarded attorney’s fees in the total amount of

       5
         The California Supreme Court has defined the “lodestar” as “the number of
hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group,
Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.)

                                              7
$1,285,510.90. The court found that Ag Land Trust met the statutory criteria for an
award of attorney’s fees under section 1021.5 because Ag Land Trust was the prevailing
party; the prosecution of the CEQA action had conferred a significant benefit on the
public and a large class of persons; and the necessity and financial burden of private
enforcement made the award appropriate.
       In calculating the amount of the attorney’s fees award, the trial court adopted the
lodestar method of determining attorney’s fees, found the hourly rates and hours claimed
by Ag Land Trust’s attorneys to be reasonable, and also awarded attorney’s fees on the
fee motion. The court exercised its discretion to award an enhancement multiplier of
1.35 due to the novelty and complexity of the issues involved and Ag Land Trust’s
“excellent job” in presenting the issues, and because some of Ag Land Trust’s attorney’s
fees were contingent.
       The trial court rejected Marina Coast’s contention that attorney’s fees for work in
other forums regarding the Regional Desalination Project were not compensable. The
court also rejected Marina Coast’s contention that the attorney’s fees award should be
eliminated or reduced because Marina Coast is a public agency, stating: “This Court is
entitled to conclude that the elected board of Marina Coast Water District must have
approved the hard-fought litigation strategy, which included not just the CEQA petition,
but the demurrer, the summary judgment, and the multiple writs. The Court assumes that
the Marina Coast board approved that kind of litigation strategy, and by approving that
kind of litigation strategy, becomes responsible for not only paying its own attorney, but
for the kind of response that was evoked.”
                                   III. DISCUSSION
       Marina Coast filed a timely notice of appeal from the February 6, 2013 order
awarding attorney’s fees to Ag Land Trust. An appeal from a postjudgment attorney’s
fees order is separately appealable as postjudgment order. (See § 904.1, subd. (a)(2);



                                             8
Building a Better Redondo, Inc. v. City of Redondo Beach (2012) 203 Cal.App.4th 852,
869-870.)6
       A. The Parties’ Contentions
       On appeal, Marina Coast’s primary argument is that the reversal of the judgment
in Ag Land Trust I means that no judgment exists that could support an award of
attorney’s fees. In the absence of a judgment, Marina Coast insists that Ag Land Trust is
no longer a successful party entitled to an award of private attorney general fees under
section 1021.5.
       Alternatively, Marina Coast argues that in the event this court finds that reversal
of the judgment does not necessitate reversal of the attorney’s fees award, this court
must address the merits of Marina Coast’s prior challenge to the merits of the judgment.
According to Marina Coast, the trial court lacked jurisdiction to entertain Ag Land
Trust’s writ petition because it constituted a collateral attack on a decision of the PUC;
the trial court lacked jurisdiction on various other grounds; and attorney’s fees cannot be
awarded where, as here, the underlying action lacked merit.
       In response, Ag Land Trust acknowledges that the judgment was reversed on
mootness grounds. Relying on the California Supreme Court’s decision in Press v. Lucky
Stores, Inc. (1983) 34 Cal.3d 311 (Press) and Maria P. v. Riles (1987) 43 Cal.3d 1281
(Maria P.), Ag Land Trust argues that it is well established a plaintiff may be awarded
attorney’s fees under section 1021.5 even where the action has become moot.
       Ag Land Trust further argues that substantial evidence supports the award of
private attorney general’s fees under section 1021.5. According to Ag Land Trust, it is
the successful or prevailing party within the meaning of section 1021.5 because the
record shows that its action was a substantial factor in the demise of the Regional

       6
        Marina Coast’s motion for expedited treatment of its appeal and calendar
preference was deferred for consideration with the merits of this appeal. Since we have
held oral argument, we deny the motion as moot.

                                              9
Desalination Project, and also because the action had a significant public impact with
regard to water rights, environmental impacts, and the EIR. Alternatively, under the
catalyst theory stated in Graham, supra, 34 Cal.4th at pages 565-566, Ag Land Trust
argues that its action achieved the results sought in the litigation: “to stop Marina Coast
from building the [Regional Desalination Project] in reliance on a defective EIR.”
        Finally, Ag Land Trust contends that Marina Coast’s arguments on appeal with
regard to the trial court’s jurisdiction should be rejected because the jurisdictional
arguments lack substantive merit and this court determined in Ag Land Trust I, supra,
H038550 that the appeal on the merits of the judgment was moot.
        In reply, Marina Coast argues that Ag Land Trust has not met the three-part test
for an award of attorney’s fees under the catalyst theory stated in Graham, supra, 34
Cal.4th 553. Marina Coast explains that (1) Ag Land Trust is not the prevailing party
because its action was not a catalyst in causing Marina Coast to change its position on the
Regional Desalination Project; (2) Ag Land Trust’s action lacked merit; and (3) Ag Land
Trust did not make a reasonable pre-litigation effort to settle the case.
        After briefing was completed, Ag Land Trust moved for leave to file a
supplemental letter brief disputing Marina Coast’s contention, made for the first time in
its reply brief, that Ag Land Trust had failed to make a reasonable pre-litigation effort to
settle the case. We granted the motion and have filed Ag Land Trust’s supplemental
letter brief.
        Before addressing the parties’ contentions on appeal, we provide an overview of
the standard for an award of section 1021.5 private attorney general’s fees to a
nonprevailing plaintiff under the catalyst theory.
        B. The Catalyst Theory
        In several decisions, the California Supreme Court has clarified the award of
attorney’s fees under section 1021.5, the private attorney general statute. “Section 1021.5
authorizes a court to ‘award attorneys’ fees to a successful party . . . in any action which

                                              10
has resulted in the enforcement of an important right affecting the public interest . . . .’
The Legislature enacted the provision to codify the private attorney general doctrine
previously developed by the courts. [Citations.] The doctrine rests on the recognition
that privately initiated lawsuits, while often essential to effectuate important public
policies, will as a practical matter frequently be infeasible without some mechanism
authorizing courts to award fees. [Citations.] Accordingly, ‘ “the fundamental objective
of the doctrine is to encourage suits enforcing important public policies by providing
substantial attorney fees to successful litigants in such cases.” ’ [Citations.]” (Vasquez v.
State of California (2008) 45 Cal.4th 243, 250 (Vasquez).)
       “A court may award attorney fees under section 1021.5 only if the statute’s
requirements are satisfied. Thus, a court may award fees only to ‘a successful party’ and
only if the action has ‘resulted in the enforcement of an important right affecting the
public interest . . . .’ [Citation.] Three additional conditions must also exist: ‘(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.’ [Citation.]” (Vasquez, supra, 45 Cal.4th at
pp. 250-251.)
       In Graham, our Supreme Court considered the question of “whether
section 1021.5 permitted an award of attorney fees, . . . ‘even when 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.’ [Citation.]” (Vasquez, supra, 45 Cal.4th
at p. 253, quoting Graham, supra, 34 Cal.4th at p. 560.) The Graham court answered the
question in the affirmative: “Under the catalyst theory, attorney fees may be awarded
even when 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. . . . In

                                              11
order to be eligible for attorney fees under section 1021.5, a plaintiff must not only be a
catalyst to defendant’s changed behavior, but the lawsuit must have some merit, . . . and
the plaintiff must have engaged in a reasonable attempt to settle its dispute with the
defendant prior to litigation.” (Graham, supra, at pp. 560-561.)
       In the companion case of Tipton-Whittingham v. City of Los Angeles (2004) 34
Cal.4th 604 (Tipton-Whittingham) the Supreme Court further stated: “California law
continues to recognize the catalyst theory . . . . In order to obtain attorney fees without
such a judicially recognized change in the legal relationship between the parties, a
plaintiff must establish that (1) the lawsuit was a catalyst motivating the defendants to
provide the primary relief sought; (2) that the lawsuit had merit and achieved its catalytic
effect by threat of victory, not by dint of nuisance and threat of expense, as elaborated in
Graham; and (3) that the plaintiffs reasonably attempted to settle the litigation prior to
filing the lawsuit.” (Id. at p. 608.)
       Thus, an attorney’s fee award under section 1021.5 “may be justified even when
plaintiff’s legal action does not result in a favorable final judgment. [Citations.]”
(Maria P., supra, 43 Cal.3d at pp. 1290-1291; see also Press, supra, 34 Cal.3d at
pp. 320-321 [plaintiffs awarded fees under § 1021.5 although action became moot
because they achieved the relief sought through preliminary injunction].)
       C. Analysis
       At the outset, we agree with Marina Coast that the disposition in the August 26,
2013 decision in Ag Land Trust I, which reversed the judgment and directed the trial
court to dismiss Ag Land Trust’s writ petition as moot, compels reversal of the
February 6, 2013 postjudgment order awarding Ag Land Trust attorney’s fees in the total
amount of $1,285,510.90. (See California Grocers Assn. v. Bank of America (1994) 22
Cal.App.4th 205, 221 [order awarding section 1021.5 attorney’s fees “ ‘falls with a
reversal of the judgment on which it is based.’ [Citation.]”.)



                                             12
       However, reversal of the February 6, 2013 attorney’s fees order does not end our
analysis. In Midpeninsula Citizens for Fair Housing v. Westwood Investors (1990) 221
Cal.App.3d 1377, this court determined that where, as here, the judgment is reversed and
the matter remanded with directions to dismiss the action as moot, the plaintiff may seek
attorney’s fees under section 1021.5 by showing “on remand that the action,
notwithstanding its dismissal for mootness, has ‘resulted in the enforcement of an
important right affecting the public interest.’ [Citation.]” (Id. at p. 1392, fn. 3.)
       We acknowledge the parties’ arguments on appeal regarding Ag Land Trust’s
entitlement to section 1021.5 attorney’s fees under the catalyst theory. We decline the
invitation to decide the issue in this appeal, since the trial court usually decides whether a
party is entitled to an award of attorney’s fees under section 1021.5 in the first instance.
(See Protect Our Water v. County of Merced (2005) 130 Cal.App.4th 488, 494.) “In
general, whether plaintiffs have met the statutory requirements for an award of fees
pursuant to section 1021.5 is a matter for the discretion of the trial court. [Citation.]”
(Wallace v. Consumers Cooperative of Berkeley, Inc. (1985) 170 Cal.App.3d 836, 845.)
       In exercising its discretion, the trial court may make factual findings. “When a
lawsuit has been mooted by a defendant’s change in conduct, some development of the
factual record is required in order to prevail on a catalyst theory. 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. [Citation].”
(Graham, supra, 34 Cal.4th at p. 576.) Additionally, “[t]he trial court may review this
factual background not only to determine the lawsuit’s catalytic effect but also its
merits.” (Ibid.)
       Accordingly, under the first prong of the three-part test announced in Graham and
restated in Tipton-Whittingham for application of the catalyst theory, the trial court
determines whether “the lawsuit was a catalyst motivating the defendants to provide the
primary relief sought.” (Tipton-Whittingham, supra, 34 Cal.4th at p. 608; see also

                                               13
Westside Community for Independent Living, Inc. v. Obledo (1983) 33 Cal.3d 348, 353
[award of attorney’s fees under section 1021.5 not proper where no causal connection
between plaintiff’s action and relief obtained].) “ ‘The critical fact is the impact of the
action, not the manner of its resolution.’ [Citation.] . . . [¶] If plaintiff’s lawsuit
‘induced’ defendant’s response or was a ‘material factor’ or ‘contributed in a significant
way’ to the result achieved then plaintiff has shown the necessary causal connection.
[Citations.] The question of whether plaintiff’s action is causally linked to achieving the
relief obtained is a question of fact. [Citation.]” (Californians for Responsible Toxics
Management v. Kizer (1989) 211 Cal.App.3d 961, 967 (italics added); see also Sagaser v.
McCarthy (1986) 176 Cal.App.3d 288, 315 [whether plaintiffs’ efforts resulted in the
enforcement of an important right affecting the public interest is a factual issue].)
       The second prong of the catalyst theory’s three-part test requires the trial court to
determine whether “the lawsuit had merit and achieved its catalytic effect by threat of
victory, not by dint of nuisance and threat of expense, as elaborated in Graham.”
(Tipton-Whittingham, supra, 34 Cal.4th at p. 608.) In Graham, the Supreme Court
instructed that “[t]he trial court must determine that the lawsuit is not ‘frivolous,
unreasonable or groundless’ [citation], in other words that its result was achieved ‘by
threat of victory, not by dint of nuisance and threat of expense.’ [Citation.] The
determination the trial court must make is not unlike the determination it makes when
asked to issue a preliminary injunction, i.e., not a final decision on the merits but a
determination at a minimum that ‘ “the questions of law or fact are grave and difficult.” ’
[Citations.]” (Graham, supra, 34 Cal.4th at pp. 575-576.)
       The third prong of the catalyst theory’s three-part test—whether “the plaintiffs
reasonably attempted to settle the litigation prior to filing the lawsuit”—may also present
a factual question. (Tipton-Whittingham, supra, 34 Cal.4th at p. 608.) “[S]ettlement
efforts (or their absence) are relevant in every case to show that ‘the necessity and
financial burden of private enforcement . . . are such as to make the award

                                              14
appropriate . . . .’ [Citation.] In assessing such information in a particular case to
determine whether private enforcement was sufficiently necessary to justify an award of
fees, the trial court exercises its equitable discretion in light of all the relevant
circumstances.” (Vasquez, supra, 45 Cal.4th at pp. 258-259, fn. omitted.) “Lengthy
prelitigation negotiations are not required, nor is it necessary that the settlement demand
be made by counsel, but a plaintiff must at least notify the defendant of its grievances and
proposed remedies and give the defendant the opportunity to meet its demands within a
reasonable time. [Citations.] What constitutes a ‘reasonable’ time will depend on the
context.” (Graham, supra, 34 Cal.4th at p. 577.)
       In the present case, the trial court ruled on Ag Land Trust’s motion for an award of
private attorney general fees under section 1021.5 prior to this court’s reversal of the
judgment and remand for dismissal of the action. The trial court therefore did not
consider whether Ag Land Trust, as the nonprevailing party, was entitled to an award of
section 1021.5 attorney’s fees under the catalyst theory.
       As we have discussed, the trial court usually determines entitlement to an award
of section 1021.5 attorney’s fees under the catalyst theory in the first instance.
Additionally, since application of the three-part test stated in Graham and Tipton-
Whittingham may involve factual determinations, we conclude that a remand to the trial
court is appropriate. “ ‘[I]t has long been the general rule . . . that “. . . the province of
the trial court to decide questions of fact and of the appellate court to decide questions of
law . . . .” [Citation.] The rule promotes the orderly settling of factual questions and . . .
provides a meaning record for review . . . .’ ” (California Farm Bureau Federation v.
State Water Resources Control Bd. (2011) 51 Cal.4th 421, 442.)
       We will therefore reverse the February 6, 2013 attorney’s fees order and remand
the matter for the trial court, upon motion by Ag Land Trust, to exercise its discretion
under the standard stated by the California Supreme Court in Graham, supra, 34 Cal.4th
553 for an award of section 1021.5 private attorney general’s fees under the catalyst

                                               15
theory. Having reached this conclusion, we need not address Marina Coast’s challenge to
the substantive merits of Ag Land Trust’s action on jurisdictional and other grounds,
since the merits of the action is a factor in the three-part test for application of the catalyst
theory. (See Tipton-Whittingham, supra, 34 Cal.4th at p. 608.)
                                     IV. DISPOSITION
       The February 6, 2013 order after hearing awarding attorney’s fees under Code of
Civil Procedure section 1021.5 is reversed, and the matter is remanded to the trial court,
upon motion by Ag Land Trust, to exercise its discretion under the standard stated by the
California Supreme Court in Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553
for an award of Code of Civil Procedure section 1021.5 attorney’s fees under the catalyst
theory. The parties shall bear their own costs on appeal.




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                             ___________________________________________
                             BAMATTRE-MANOUKIAN, J.




WE CONCUR:




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ELIA, ACTING P.J.




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MIHARA, J.
