Filed 10/25/13; pub. order 11/15/13 (see end of opn.)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  FOURTH APPELLATE DISTRICT

                                             DIVISION THREE


DONALD A. NORBERG as Trustee, etc.,

    Plaintiff and Respondent,                               G047522

        v.                                                  (Super. Ct. No. 30-2010-00351770)

CALIFORNIA COASTAL COMMISSION                               OPINION
et al.,

    Defendants and Appellants.



                 Appeal from an order of the Superior Court of Orange County, Luis A.
Rodriguez, Judge. Reversed.
                 Kamala D. Harris, Attorney General, John A. Saurenman, Assistant
Attorney General, Jamee Jordan Patterson and Hayley Peterson, Deputy Attorneys
General for Defendants and Appellants.
                 Gaines & Stacey, Sherman L. Stacey and Nanci S. Stacey for Plaintiff and
Respondent.
                                       *                *        *
              The facts underlying this appeal are set forth more fully in the opinion
rendered in companion Case No. G047584. As we recall, the trial court issued a
peremptory writ of mandate directing the California Coastal Commission (Commission)
to set aside certain conditions it had imposed with respect to the residential permit
application of Donald A. Norberg as Trustee of the Norberg Family Trust (Norberg).
Norberg thereafter filed a motion for private attorney general fees and the court awarded
him $35,870. The Commission appeals.
              We reverse. The issuance of the peremptory writ of mandate did not confer
a substantial benefit on either the general public or a large number of persons. Moreover,
the financial burden of the litigation was not out of proportion to Norberg‟s individual
stake in the matter.
                                              I
                                           FACTS
              In granting Norberg‟s petition for a writ of mandate, the court stated that
the Commission‟s findings with respect to the location of the bluff edge were not
supported by substantial evidence and that the Commission‟s imposition of condition No.
2 restricting the future use of shoreline protective devices exceeded its jurisdiction,
inasmuch as the verbiage of condition No. 2 omitted certain qualifying language of
Public Resources Code section 30253. Norberg based his Code of Civil Procedure
section motion for attorney fees1 on the determination that the Commission had exceeded
its jurisdiction in imposing condition No. 2 as originally worded.
              In his motion, Norberg argued that because of the trial court ruling in his
matter, interpreting the scope of Public Resources Code section 30253, the Commission


1               In his motion, Norberg sought $35,870 in attorney fees under Code of Civil
Procedure section 1021.5, or in the alternative, $7,500 in attorney fees under Government
Code section 800. The availability of attorney fees under Government Code section 800
is not at issue on appeal.

                                              2
could no longer impose a broadly worded shoreline protective device restriction, that
failed to fully track the language of the statute, on any other person who might seek a
permit in the future. Consequently, he argued, inter alia, that he had conferred a
significant benefit on the general public and a large class of persons, giving rise to an
entitlement to private attorney general fees under Code of Civil Procedure section 1021.5.
              The court held that Norberg was entitled to attorney fees under Code of
Civil Procedure section 1021.5. It found that Norberg, as a successful party, had
vindicated important rights and conferred a significant benefit on the general public and a
large class of persons. It stated that the Commission had purposely disregarded the
Coastal Act by forcing Norberg and other permit applicants to either waive their rights to
construct shoreline protective devices or have their permit applications denied. The court
further stated that the necessity of private enforcement and the financial burden thereof
made the award appropriate. In conclusion, the court stated that Norberg received no
direct pecuniary benefit inasmuch as he received no monetary award and did not intend to
sell his home in the foreseeable future.
                                              II
                                       DISCUSSION
A. Standard of Review:
              “On appeal from an award of attorney fees under section 1021.5, „“the
normal standard of review is abuse of discretion. . . .”‟ [Citations.]” (Serrano v. Stefan
Merli Plastering Co., Inc. (2011) 52 Cal.4th 1018, 1025-1026.) That is the standard we
apply here. (See City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 82-83.)


B. Code of Civil Procedure Section 1021.5:
              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

                                              3
affecting the public interest if: (a) a significant benefit, whether pecuniary or
nonpecuniary, has been conferred on the general public or a large class of persons, (b) the
necessity and financial burden of private enforcement, . . . are such 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.”
              So, in applying “the statutory criteria, we must consider whether : (1)
plaintiffs‟ action „has resulted in the enforcement of an important right affecting the
public interest,‟ (2) „a significant benefit, whether pecuniary or nonpecuniary has been
conferred on the general public or a large class of persons‟ and (3) „the necessity and
financial burden of private enforcement are such as to make the award appropriate.‟
[Where] plaintiffs‟ action has produced no monetary recovery, factor „(c)‟ of section
1021.5 is not applicable.” (Woodland Hills Residents Assn., Inc. v. City Council (1979)
23 Cal.3d 917, 934-935; accord, Serrano v. Stefan Merli Plastering Co., Inc., supra, 52
Cal.4th at p. 1026.)


C. Enforcement of Important Right Affecting Public Interest:
              “Section 1021.5, . . . permits an award „“in any action which has resulted in
the enforcement of an important right affecting the public interest” regardless of its
source—constitutional, statutory or other.‟ [Citation.]” (Folsom v. Butte County Assn. of
Governments (1982) 32 Cal.3d 668, 683.) “The enforcement of an important right
affecting the public interest implies that those on whom attorney fees are imposed have
acted, or failed to act, in such a way as to violate or compromise that right, thereby
requiring its enforcement through litigation.” (Adoption of Joshua S. (2008) 42 Cal.4th
945, 956; accord, Serrano v. Stefan Merli Plastering Co., Inc., supra, 52 Cal.4th at p.
1026.)
              In enacting Code of Civil Procedure section 1021.5, “the Legislature was
focused on public interest litigation in the conventional sense: litigation designed to

                                              4
promote the public interest by enforcing laws that a governmental or private entity was
violating, rather than private litigation that happened to establish an important
precedent.” (Adoption of Joshua S., supra, 42 Cal.4th at p. 956.)
              Here, in bringing his writ petition, Norberg sought to invalidate permit
conditions affecting planned residential improvements on his privately owned oceanfront
property. His primary attacks were on the determination of the location of the bluff edge,
which affected the building setback on his property and thus the scope of his
improvements, and on condition No. 2, regarding the future use of shoreline protective
devices. Where his request for attorney fees is concerned, however, he focuses only on
the wording of condition No. 2, which is based upon Public Resources Code section
30253.
              We agree that the proper application of statutory language, such as that
contained in Public Resources Code section 30253, is an important right. Furthermore, it
has been said that “the public always has a significant interest in seeing that legal
strictures are properly enforced . . . .” (Woodland Hills Residents Assn., Inc. v. City
Council, supra, 23 Cal.3d at p. 939.) This does not mean, however, that the private
attorney general doctrine was designed to reward plaintiffs who, in pursuit of their own
interests, just happened to bring about the enforcement of a statute that benefits the
public. (Beach Colony II v. California Coastal Com. (1985) 166 Cal.App.3d 106, 114.)


D. Significant Benefit Conferred on Large Class of Persons:
              In one sense, “the public always derives a „benefit‟ when illegal private or
public conduct is rectified.” (Woodland Hills Residents Assn., Inc. v. City Council,
supra, 23 Cal.3d at p. 939.) This case, for example, pertains to a Commission permit
condition that failed to fully track the language of Public Resources Code section 30253.
However, “the Legislature did not intend to authorize an award of attorney fees in every
case involving a statutory violation.” (Woodland Hills Residents Assn., Inc. v. City

                                              5
Council, supra, 23 Cal.3d at p. 939.) “„Instead, its purpose is to provide some incentive
for the plaintiff who acts as a true private attorney general, prosecuting a lawsuit that
enforces an important public right and confers a significant benefit, despite the fact that
his or her own financial stake in the outcome would not by itself constitute an adequate
incentive to litigate.‟ [Citations.]” (LaGrone v. City of Oakland (2011) 202 Cal.App.4th
932, 946.)
              The Commission argues, and persuasively so, that the only thing Norberg
achieved was the invalidation of a permit condition affecting one parcel of privately
owned real property. It points out that the issuance of the peremptory writ of mandate
benefitted only Norberg—no one else. The Commission emphasizes that the trial court‟s
decision has no precedential value and, consequently, does not confer a substantial
benefit, or any benefit, on a large class of persons. (Beach Colony II v. California
Coastal Com., supra, 166 Cal.App.3d at p. 111 [decision is limited to parties and does
not benefit large class of persons].)
              In support of its position, the Commission cites Pacific Legal Foundation v.
California Coastal Com. (1982) 33 Cal.3d 158. In that case, the co-owners of a parcel of
beachfront property made certain seawall improvements without first obtaining a permit.
When they applied for a permit after the fact, the Commission imposed a condition
concerning the dedication of an easement for public access. The property owners sought
and obtained a writ of administrative mandamus. The court determined the
Commission‟s finding that the improvements adversely impacted public access to the
beach was unsupported by substantial evidence. (Id. at p. 164.)
              The Supreme Court in Pacific Legal Foundation v. California Coastal
Com., supra, 33 Cal.3d 158 held that the property owners were not entitled to an award of
attorney fees under Code of Civil Procedure section 1021.5. It stated: “The record
demonstrates that the primary effect of the judgment was to invalidate the particular
permit condition imposed in light of the limited facts . . . . The court granted a writ of

                                              6
administrative mandamus because the findings of the Commission forming the basis for
the exaction in question were not supported by substantial evidence. . . . The court also
concluded, on the basis of the absence of evidence to support the Commission‟s factual
determinations, that the permit condition effected an unconstitutional taking of an interest
in plaintiffs‟ property.” (Pacific Legal Foundation v. California Coastal Com., supra, 33
Cal.3d at p. 167.)
              The court continued: “Although we have no doubt that the right to be free
from the deprivation of private property interests in an arbitrary manner may rise to the
level of an „important right affecting the public interest,‟ it is equally plain that the grant
of administrative mandamus under the limited factual circumstances shown here did not
result in conferring a „significant benefit‟ on a „large class of persons.‟ The decision
vindicated only the rights of the owners of a single parcel of property.” (Pacific Legal
Foundation v. California Coastal Com., supra, 33 Cal.3d at p. 167.)
              So too, here, the invalidation of the bluff edge determination, because of a
lack of substantial evidence, and the invalidation of the restriction on the future use of
shoreline protective devices, because of a failure to fully track the language of the statute,
affects only the rights of Norberg, no one else. It simply cannot be said that the
peremptory writ of mandate conferred a benefit on a large class of persons. (Beach
Colony II v. California Coastal Com., supra, 166 Cal.App.3d at p. 111.)
              However, Norberg emphasizes that Pacific Legal Foundation v. California
Coastal Com., supra, 33 Cal.3d 158 addressed only a situation where the Commission
had made a finding unsupported by substantial evidence; it did not also address the
application of a statute, such as Public Resources Code section 30253. True enough, but
the court in Pacific Legal Foundation observed that the permit condition in question
effected an unconstitutional taking of property. (Pacific Legal Foundation v. California
Coastal Com., supra, 33 Cal.3d at p. 167.) So, while its decision did not address a
statutory issue, it did address one of constitutional proportions. Moreover, the point of

                                               7
the matter is that the court in Pacific Legal Foundation stated the granting of the petition
for writ relief did not confer a significant benefit on a large class of persons inasmuch as
it “vindicated only the rights of the owners of a single parcel of property.” (Ibid; see also
Christward Ministry v. County of San Diego (1993) 13 Cal.App.4th 31, 49.)
              Similarly, in the matter before us, the peremptory writ of mandate did not
confer a benefit on anyone other than Norberg. Yet Norberg maintains that the
application of the court‟s decision on permit condition No. 2 cannot be limited to himself
alone. We must disagree. Just as in LaGrone v. City of Oakland, supra, 202 Cal.App.4th
932, the “action was not initiated in the interest of the general public, but instead as an
administrative action [for personal purposes]. The possibility that his lawsuit may have
conveyed a cautionary message to the [public entity] about [its] conduct, or that it might
cause [the public entity] to change [its] practices in the future, is insufficient to satisfy the
significant public benefit requirement. [Citations.]” (Id. at p. 946.)
              Inasmuch as we hold that the first of the three factors set forth in Code of
Civil Procedure section 1021.5 has not been satisfied, we could end our discussion here.
However, inasmuch as Norberg puts great emphasis on the second factor, we will address
it as well.


E. Financial Burden:
              (1) Purpose of fees—
              “[A] litigant who has a financial interest in the litigation may be
disqualified from obtaining [private attorney general] fees when expected or realized
financial gains offset litigation costs.” (Conservatorship of Whitley (2010) 50 Cal.4th
1206, 1211.) At the same time, “the purpose of [Code of Civil Procedure] section 1021.5
is not to compensate with attorney fees only those litigants who have altruistic or lofty
motives, but rather all litigants and attorneys who step forward to engage in public
interest litigation when there are insufficient financial incentives to justify the litigation

                                                8
in economic terms.” (Conservatorship of Whitley, supra, 50 Cal.4th at p. 1211, italics
added.)
              “In determining the financial burden on litigants, courts have quite logically
focused not only on the costs of the litigation but also any offsetting financial benefits
that the litigation yields or reasonably could have been expected to yield. „“An award on
the „private attorney general‟ theory 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.]” (Conservatorship of Whitley,
supra, 50 Cal.4th at p. 1215.)
              (2) Character of personal interest—
              Norberg challenges the Commission‟s assertion that he is not entitled to
attorney fees because he was simply vindicating his own private interests. He says
Conservatorship of Whitley, supra, 50 Cal.4th 1206 makes clear that the focus is on the
plaintiff‟s financial incentives and burdens, not on his abstract personal stake. He is
correct on this point. (Id. at p. 1221.)
              However, we disagree with Norberg‟s assertion that he had no financial
incentive in filing his writ petition. Norberg sought to enhance his oceanfront property
with what he estimated to be $250,000 in improvements. These improvements were
comprised of the addition to the dwelling of a new 860-square-foot semi-subterranean
lower level, including two bedrooms, two bathrooms, a family room and a storage/utility
room, the remodeling of the upper/existing level of the dwelling, and the construction of
a ground level paved patio, an outdoor spa and an outdoor shower. In filing his writ
petition, he sought to invalidate the bluff edge determination, so as to expand the
developable area of his backyard, and to invalidate the restriction on the future use of
shoreline protection devices, so as to enhance the desirability of proceeding with his

                                              9
construction without concern about whether the restriction would ever come into play.
              In other words, Norberg‟s goal was to enhance his private property with
$250,000 in improvements. We call this a financial incentive. We can‟t slice it any other
way.
              Yet Norberg insists, as the court observed, that he derived no pecuniary
benefit from the issuance of the writ, inasmuch as he had no intention of selling his
property any time soon. But the fact that he was not planning on liquidating his asset any
time soon does not mean that he did not have a financial incentive—the ownership of a
property with $250,000 in additional improvements—in pursuing writ relief.
              (3) Speculative value—
              Norberg, relying on Conservatorship of Whitley, supra, 50 Cal.4th 1206,
maintains that the type of benefit he received does not preclude an attorney fees award.
The Whitley court observed: “In determining the financial burden on litigants, the courts
have quite logically focused not only on the costs of the litigation but also any offsetting
financial benefits that the litigation yields or reasonably could have been expected to
yield. „“An award on the „private attorney general‟ theory 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.]” (Id. at p. 1215.)
              In applying this balancing test, the court follows a multi-step approach.
The first step is for the trial court to estimate the monetary value of the benefits obtained.
The second step is to apply a discount based upon the probability of success at the time
the “vital litigation decisions were being made.” (Conservatorship of Whitley, supra, 50
Cal.4th at p. 1215.) The final step is to compare the estimated value of the case at the
time the vital litigation decisions were being made, to the costs of the litigation, and then
determine “whether it is desirable to offer the bounty of a court-awarded fee in order to
encourage litigation of the sort involved in this case. . . . [A] bounty will be appropriate

                                              10
except where the expected value of the litigant‟s own monetary award exceeds by a
substantial margin the actual litigation costs.‟ [Citation.]” (Id. at pp. 1215-1216.)
              Here, Norberg says the Commission provided no evidence of the amount by
which the value of his property was enhanced due to the invalidation of the permit
conditions. He forgets, however, that it is the party seeking private attorney general fees
who “bears the burden of establishing that its litigation costs transcend its personal
interest. [Citation.]” (Beach Colony II v. California Coastal Com., supra, 166
Cal.App.3d at p. 113.)
              Norberg also says that any increase in value was speculative and that
speculative financial rewards may not be considered in the analysis, citing Baggett v.
Gates (1982) 32 Cal.3d 128 and Galante Vineyards v. Monterey Peninsula Water
Management Dist. (1997) 60 Cal.App.4th 1109. However, neither of these cases
supports this broad-based assertion.
              In Baggett v. Gates, supra, 32 Cal.3d 128, certain police officers were
demoted by their employer, a chartered city, without being afforded an administrative
appeal under the Public Safety Officers Procedural Bill of Rights Act (Gov. Code § 3300
et seq.) (Bill of Rights Act). (Baggett v. Gates, supra, 32 Cal.3d at pp. 131-133.) In
defending against the officers‟ writ petition, the employer argued that the Bill of Rights
Act was inapplicable to chartered cities. (Id. at p. 134.) The Supreme Court held that the
Bill of Rights Act did apply to chartered cities and that the officers were entitled to
recover private attorney general fees. (Id. at pp. 139, 143.)
              The court stated: “Plaintiffs‟ action resulted in securing for themselves and
many others the basic rights and protections of the Bill of Rights Act. This court has
today concluded that these rights and protections are matters of statewide concern. It
follows that the rights vindicated by plaintiffs are sufficiently „important‟ to justify an
attorney fee award. [Citation.]” (Baggett v. Gates, supra, 32 Cal.3d at p. 143.) The



                                              11
court continued: “Moreover, it can scarcely be contended that plaintiffs‟ litigation has
not conferred a „significant benefit‟ on the „general public.‟” (Ibid.)
              With respect to the financial incentive/burden issue, the Baggett court said:
“Finally, although this is a closer question, the record before this court indicates that the
financial burden this suit placed on plaintiffs was out of proportion to their personal stake
in the case. By their action, plaintiffs have secured the enforcement of basic procedural
rights . . . . However, enforcement of these procedural rights may well not result in any
pecuniary benefit to plaintiffs themselves. [Citation.] For example, plaintiffs‟ newly
won right to an administrative appeal of the Department‟s decision to reassign them to
lower paying positions will not necessarily result in the reversal of that decision.
Plaintiffs‟ reassignment and consequent reduction in salary may be approved.” (Baggett
v. Gates, supra, 32 Cal.3d at p. 143.)
              The court in Baggett v. Gates, supra, 32 Cal.3d 128 did not, as Norberg
claims, hold that unquantifiable financial incentives may not be considered. In any event,
in the matter before us, not only has Norberg failed to obtain a decision with statewide
impact, his personal benefits have been fully secured. He may proceed with the
improvements to his dwelling unfettered by concerns about the erroneous wording of
condition No. 2.
              In Galante Vineyards v. Monterey Peninsula Water Management Dist.,
supra, 60 Cal.App.4th 1109, the owners of several vineyards filed a petition for a writ of
mandate attacking the certification of an environmental impact report (EIR) and the
approval of a dam and reservoir project. (Id. at pp. 1113, 1116.) The court issued a
peremptory writ of mandate ordering the water management district to set aside both the
certification of the final EIR and the approval of the project and to prepare a
supplemental EIR pertaining to viticultural issues. (Id. at p. 1116.) In addition, the court
awarded the petitioners private attorney general fees under Code of Civil Procedure
section 1021.5. (Id. at pp. 1125-1126.)

                                              12
               On appeal, the water management district argued it was error to award
attorney fees because of the significant financial interest of the vineyards in the outcome
of the litigation. (Galante Vineyards v. Monterey Peninsula Water Management Dist.,
supra, 60 Cal.App.4th at p. 1126.) The appellate court rejected the argument, stating:
“In the present action, petitioners . . . are probably the greatest beneficiaries of the writ
ordering a focused supplemental EIR on viticultural issues. However, there is no direct
pecuniary benefit to petitioners in the judgment. In addition, any future money advantage
for petitioners is speculative. Both these factors tend to favor a grant of attorney‟s fees.
[Citation.]” (Id. at pp. 1127-1128.) Although the court remarked that “the question of
whether the cost of petitioners‟ legal victory transcends their personal interests was a
close one,” it found no abuse of discretion in the award of attorney fees, which was less
than the amount sought precisely because of the financial interest of the petitioners. (Id.
at p. 1128.)
               In the matter before us, however, the issuance of the writ was of direct
benefit to Norberg in that it allowed him to pursue his desired $250,000 in property
enhancements, unfettered by his concerns over the original restriction regarding the
future use of shoreline protective devices, and it overturned the original bluff edge
determination, giving Norberg another opportunity to score a victory on the developable
area of his property. Although his financial incentives were difficult to quantify, one can
pit the enhanced desirability of proceeding with such extensive property improvements,
even as discounted for the likelihood of prevailing on the litigation, against only $35,870
in litigation costs. It is difficult to imagine that the discounted financial incentive does
not exceed the litigation cost by a significant margin.
               As an aside, we note that while Norberg bases his claim to attorney fees on
litigation over condition No. 2, his $35,870 legal bill appears to cover all issues addressed
in the litigation, not just the propriety of condition No. 2. That is to say, Norberg has
given no indication that there was any effort to separate out and subtract from the total

                                              13
legal bill the cost of the services pertaining to the review and analysis of engineering and
evidentiary issues relevant to the bluff edge determination, issues one might surmise were
quite time consuming. Were the legal bill reduced by the amount of fees incurred with
respect to issues other than condition No. 2, the cost of litigating the statutory issue upon
which Norberg bases his claim likely would have been even less in comparison to the
benefits received. (See Conservatorship of Whitley, supra, 50 Cal.4th at p. 1226 [re
consideration of portion of fees incurred in furthering the issue of public importance].)
              Although we could send the matter back to the trial court to make findings
on the attorney fees breakdown, the value of financial incentives to Norberg, and an
appropriate discount reflecting the likelihood of litigation success determined at the
outset, and to engage in the multi-step weighing process described in Conservatorship of
Whitley, supra, 50 Cal.4th at pages 1215-1216, we see no reason to do so in light of our
holding that the first factor set forth in Code of Civil Procedure section 1021.5 has not
been satisfied.
                                             III
                                       DISPOSITION
              The order is reversed. The Commission shall recover its costs on appeal.




                                                   MOORE, ACTING P. J.

WE CONCUR:



FYBEL, J.



THOMPSON, J.



                                             14
Filed 11/15/13

                             CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FOURTH APPELLATE DISTRICT

                                      DIVISION THREE

DONALD A. NORBERG as Trustee, etc.,

    Plaintiff and Respondent,                       G047522

        v.                                          (Super. Ct. No. 30-2010-00351770)

CALIFORNIA COASTAL COMMISSION                       ORDER GRANTING REQUEST FOR
et al.,                                             PUBLICATION; NO CHANGE IN
                                                    JUDGMENT
    Defendants and Appellants.


                 Appellant California Coastal Commission has requested that our opinion,
filed on October 25, 2013, be certified for publication. It appears that our opinion meets
the standards set forth in California Rules of Court, rule 8.1105(c). The request is
GRANTED.
                 The opinion is ordered published in the Official Reports.


                                                    MOORE, ACTING P. J.

WE CONCUR:



FYBEL, J.



THOMPSON, J.



                                               15
