Filed 3/5/13 Soco West v. Cal. EPA CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


SOCO WEST, INC.,

     Plaintiff and Appellant,                                          G047075

                    v.                                                 (Super. Ct. No. 30-2010-00359507)

CALIFORNIA ENVIRONMENTAL                                               OPINION
PROTECTION AGENCY et al.,

     Defendants and Respondents.


                   Appeal from a postjudgment order of the Superior Court of Orange County,
Gregory H. Lewis, Judge. Affirmed.
                   Rutan & Tucker, Richard Montevideo and Peter J. Howell for Plaintiff and
Appellant.
                   Kamala D. Harris, Attorney General, Brian W. Hembacher and Thomas G.
Heller for Defendants and Respondents.


                                             *               *               *
              In the underlying case, the trial court granted plaintiff Soco West, Inc.‟s
(Soco) motion for judgment on the pleadings and issued a writ of mandate directing
defendants California Environmental Protection Agency, Department of Toxic
Substances Control and Deborah Raphael, in her official capacity as Director of the
Department of Toxic Substances Control (collectively, DTSC) to transfer the cleanup of a
hazardous waste site from Chapter 6.5 to Chapter 6.8 of Division 20 of the Health and
Safety Code upon Soco‟s written request. We affirmed that judgment as modified. (Soco
West, Inc. v. California Environmental Protection Agency et al. (Feb. 28, 2013,
G046549) [nonpub. opn.].)
              Soco moved for attorney fees under Code of Civil Procedure section 1021.5
(all further statutory references are to this code); the court denied the motion on the
ground Soco had presented no evidence of its private interest or motivation for filing the
lawsuit. Soco filed a motion for reconsideration, arguing the court had applied the wrong
legal standard by requiring it to present evidence of its subjective motives, which raised a
new issue entitling Soco to present new evidence. Denying the motion, the court found
Soco had failed to present new and different facts as required by section 1008 and
rejected the claim it had required Soco to present evidence of its personal motivations.
              Soco contends the court applied the wrong evidentiary standard in denying
the fee motion and should have granted reconsideration because the ruling raised a new
issue. Finding no error, we affirm.


                                       DISCUSSION


1. Denial of Fee Motion
              a. Introduction
              As a preliminary matter, we reject DTSC‟s claim we should not reach the
merits of Soco‟s appeal because the order appealed from is not contained in the joint

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appendix. Soco filed the order along with its reply brief and we deem it part of the record
on appeal.
              Soco contends the issue of whether the court misconstrued section 1021.5 is
a question of law subject to de novo review. We agree.
              In determining whether a party has met the statutory requirements for
section 1021.5 fees, “„we focus on whether the court applied the proper legal standards
under section 1021.5 and, if so, whether the result was within the range of the court‟s
discretion.‟ [Citation.]” (Vargas v. City of Salinas (2011) 200 Cal.App.4th 1331, 1339.)
We review de novo whether a court applied the correct legal standard. (People v.
Brunette (2011) 194 Cal.App.4th 268, 276; In re Marriage of David & Martha M. (2006)
140 Cal.App.4th 96, 100-101.) If it did, we review the court‟s ruling for abuse of
discretion. (Vargas v. City of Salinas, supra, 200 Cal.App.4th at p. 1339.)
              To recover fees under section 1021.5, the applicant must show, inter alia,
“„“the necessity and financial burden of private enforcement are such as to make the
award appropriate.”‟ [Citation.]” (Conservatorship of Whitley (2010) 50 Cal.4th 1206,
1214 (Whitley).) This element, which is dispositive in this case, requires the court to
examine the necessity of private enforcement and “the costs of the litigation” in light of
“any offsetting financial benefits that the litigation yields or reasonably could have
expected to yield. „“An award . . . is appropriate when the cost of the claimant‟s legal
victory transcends his personal interest, that is, when the necessity for pursuing the
lawsuit placed a burden on the plaintiff „out of proportion to his individual stake in the
matter.‟ [Citation.]”‟ [Citation.] „This requirement focuses on the financial burdens and
incentives involved in bringing the lawsuit.‟ [Citation.]” (Whitley, supra, 50 Cal.4th at
p. 1215.) The party seeking fees under section 1021.5 “„bears the burden of establishing
that its litigation costs transcend its personal interest.‟ [Citations.] In deciding whether
this burden has been met, a trial court is required to make a „comparison of the litigant‟s



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private interests with the anticipated costs of suit.‟ [Citation.]” (Save Open Space Santa
Monica Mountains v. Superior Court (2000) 84 Cal.App.4th 235, 247, italics omitted.)


               b. Application of Correct Legal Standard
               In denying the fee motion, the court found Soco had failed to “show that
the cost of litigation transcends its individual stake in the litigation.” Because Soco
“present[ed] no evidence whatsoever of . . . its personal stake in the litigation . . . ” and
[n]one of the declarations address[ed] what benefit . . . [Soco] received or its motivation
for filing this lawsuit,” “the [c]ourt [was] unable to balance its personal interest against
the cost of the litigation.”
               Soco argues the court applied the wrong legal standard because its
“personal stake” and “motivations” were irrelevant and contrary to case law, including
Whitley, which hold “only the plaintiff‟s „quantifiable‟ financial interest in the case is to
be considered.” (Bold and italics omitted.) The claim lacks merit. We perceive no
distinction between the court‟s use of “personal stake” and “motivation” and Whitley‟s
use of “individual stake” and “incentives.” (Whitley, supra, 50 Cal.4th at p. 1215.) Nor
is there anything in the order itself suggesting the court was referring to Soco‟s subjective
motives, rather than its financial interests. As Whitley observed, “a court may speak of
the litigant‟s motivation „as a shorthand reference to a court‟s conclusion that the
objective financial incentives for prosecuting the lawsuit were not disproportionate to the
financial burden.‟ Motivation language is particularly useful because in assessing the
financial burdens and benefits in the context of section 1021.5, we are evaluating
incentives rather than outcomes.” (Whitley, supra, 50 Cal.4th at p. 1220.)


               c. Comparison of Estimated Value Versus Costs of Case
               Soco also contends the court improperly ignored its evidence demonstrating
its lack of financial interest in the result. We disagree.

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              “The appropriate inquiry is whether the financial burden of the plaintiff‟s
legal victory outweighs the plaintiff‟s financial interest. [Citations.] An attorney fee
award under section 1021.5 is proper unless the plaintiff‟s reasonably expected financial
benefits exceed by a substantial margin the plaintiff‟s actual litigation costs.” (Collins v.
City of Los Angeles (2012) 205 Cal.App.4th 140, 154.) In evaluating this factor, “„[t]he
trial court must first fix—or at least estimate—the monetary value of the benefits
obtained by the successful litigants themselves. . . .‟” (Whitley, supra, 50 Cal.4th at p.
1215.) The court never made it past this step because Soco failed to present any evidence
allowing it to fix or estimate the pecuniary value of the benefits Soco received.
              The only evidence submitted by Soco in its moving papers was the
declaration of its lead attorney, who did not address Soco‟s financial interests but rather
primarily attested to the amount of attorney fees incurred. Although Soco asserted it
would not receive any “immediate economic benefit,” it cited no supporting evidence.
              DTSC opposed the fee motion, noting the absence of evidence of Soco‟s
financial interest evidence and arguing the outcome of the underlying litigation requiring
DTSC to take corrective action under Chapter 6.8 rather than Chapter 6.5 possibly
benefited Soco financially by giving it the ability to (1) obtain contribution and cost
allocation from other responsible parties, (2) reduce its financial assurance costs, and (3)
recover from insurers.
              In its reply brief, Soco presented two additional attorney declarations and
one from its president Raj Mehta. Contrary to Soco‟s claim, the court did not ignore this
evidence but expressly found none of them showed Soco‟s benefit or motivation for
filing the lawsuit. This was within the court‟s discretion, as the attorney declarations
dealt with only the amount of the fees incurred, while Mehta merely rebutted DTSC‟s
evidence. In particular, Mehta attested, “[t]o [his] knowledge,” Soco‟s ability to obtain
insurance coverage would not be affected by the transfer to Chapter 6.8, he was unaware
of any insurance policy Soco could recover under, and Soco intended to comply with

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DTSC‟s demand for increased financial assurance by providing a performance bond,
which it intended to maintain until completion of the cleanup. Mehta does not identify
Soco‟s individual financial stake or incentive for filing the lawsuit. (Whitley, supra, 50
Cal.4th at p. 1215.) And merely rebutting the theories advanced by DTSC does not
provide any basis for the court to “„fix—or at least estimate—the monetary value of the
benefits obtained by‟” Soco. (Ibid.)
              Soco contends it was not required to prove a negative, noting that in the
cases cited by DTSC, actual evidence was submitted showing the moving party‟s
financial interest outweighed its litigation costs and none “involved a denial of fees based
on a lack of evidence of the party‟s personal motivation for the suit.” Neither did this
case. Rather, the court denied the fee motion because Soco had not presented any
evidence of its financial interest in the litigation. We reject any suggestion by Soco it did
not have the obligation to provide such evidence. As the party claiming fees, Soco had
the burden to present evidence establishing its litigation costs transcended its financial
interests. (Save Open Space Santa Monica Mountains v. Superior Court, supra, 84
Cal.App.4th at p. 247.) It failed to do so.
              Soco maintains the litigation did not result in “any direct or calculable
financial benefit” and that the only potential financial benefit, the possibility of a future
contribution claim, was speculative because no cleanup costs had yet been incurred under
Chapter 6.8, it was unknown how much of the costs it incurred would be the
responsibility of other parties, and the success of a contribution action could not be
predicted. But none of the declarations addressed contribution or the likelihood of
success of any such action.
              Had such evidence been presented, the court could have evaluated the
estimated value of any contribution action. As Whitley instructs, “in assessing the
financial burdens and benefits in the context of section 1021.5, we are evaluating
incentives rather than outcomes. „“[W]e do not look at the plaintiff‟s actual recovery

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after trial, but instead we consider „the estimated value of the case at the time the vital
litigation decisions were being made.‟” [Citation.] The reason for the focus on the
plaintiff‟s expected recovery at the time litigation decisions are being made, is
that . . . section 1021.5 is intended to provide an incentive for private plaintiffs to bring
public interest suits when their personal stake in the outcome is insufficient to warrant
incurring the costs of litigation.‟ [Citation.]” (Whitley, supra, 50 Cal.4th at p. 1220-
1221.) Soco never provided evidence of its estimated value of the case.
              Moreover, the uncertainty of the success of any contribution claim does not
alone entitle Soco to section 1021.5 fees, as that “is a financial risk inherent in any
litigation where . . . section 1021.5 fees are sought.” (Planned Parenthood v. City of
Santa Maria (1993) 16 Cal.App.4th 685, 692.) Planned Parenthood affirmed the denial
of attorney fees to a plaintiff whose primary objective was to obtain grant money and
“[n]o evidence was presented that the litigation transcended [its] financial interests and
imposed a financial burden disproportionate to its individual stake in the matter.” (Id. at
p. 691.) The court also rebuffed the plaintiff‟s claim “its litigation costs „far outstrips the
$60,000 grant [it] may one day get,‟” because such risk was “inherent.” (Id. at p. 692.)
              The same applies here. To the extent Soco filed the action to obtain
contribution, its direct primary objective would have been financial and the risk of being
unsuccessful was inherent. We also observe the financial implications inherent in Soco‟s
claim in its respondent‟s brief on appeal from the judgment that it filed the underlying
action to transfer the cleanup to Chapter 6.8 to eliminate DTSC‟s “bizarre Chapter 6.5-
based enforcement actions.” The cases cited by Soco are inapposite because none of the
plaintiffs directly sought a financial benefit and all identified a principal non-pecuniary
motive. (See Baggett v. Gates (1982) 32 Cal.3d 128 [action to enforce right to
administrative appeal before reassignment to lower paying position]; Otto v. Los Angeles
Unified School Dist. (2003) 106 Cal.App.4th 328 [action to secure right to administrative
appeal of placement of written note in personnel file]; Citizens Against Rent Control v.

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City of Berkeley (1986) 181 Cal.App.3d 213 [action to invalidate ordinance limiting
campaign contributions].)
              The court did not abuse its discretion in determining Soco failed to meet the
“financial burden” element of section 1021.5. We thus need not consider whether Soco
satisfied the remaining criteria, i.e., that the action “„“resulted in the enforcement of an
important right affecting the public interest”‟” and conferred a significant benefit “„“on
the general public or a large class of persons.”‟” (Whitley, supra, 50 Cal.4th at p. 1214.)


2. Motion for Reconsideration
              Soco argues the court erred in denying its motion for reconsideration. We
disagree.
              Section 1008 allows the court to reconsider and modify, amend or revoke
its prior order when the moving party shows the existence of “new or different facts,
circumstances, or law.” (§ 1008, subd. (a).) The trial court‟s ruling on a motion for
reconsideration is reviewed for abuse of discretion. (Glade v. Glade (1995) 38
Cal.App.4th 1441, 1457.)
              Soco contends the court‟s order denying its fee motion for failure to present
evidence of its subjective motivations in filing its lawsuit constituted a “new issue”
arising after it had completed its briefing that entitled it to reconsideration. (Kollander
Construction, Inc. v. Superior Court (2002) 98 Cal.App.4th 304, 314, disapproved on
another ground in Le Francois v. Goel (2005) 35 Cal.4th 1004, 1197, fn. 5; Monarch
Healthcare v. Superior Court (2000) 78 Cal.App.4th 1282, 1286.) But as noted above,
there is nothing in the order suggesting the court was referring Soco‟s subjective
motivations. The court did not abuse its discretion in denying the motion.




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                                   DISPOSITION


             The postjudgment order is affirmed. Respondents shall recover their costs
on appeal.




                                              RYLAARSDAM, ACTING P. J.

WE CONCUR:



ARONSON, J.



FYBEL, J.




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