Filed 2/21/18
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                     DIVISION FOUR

SAVE LAFAYETTE et al.,
        Plaintiffs and Appellants,                A149342

v.                                                (Contra Costa County
CITY OF LAFAYETTE et al.,                         Super. Ct. No. MSN16-0390)
        Defendants and Respondents.


                                             I.
                                     INTRODUCTION
        Appellants Save Lafayette and Michael Griffiths appeal the trial court’s denial of
their petition for a peremptory writ of mandate requiring respondent City of Lafayette
(the City) to submit appellants’ referendum to a public vote. The City amended its
general plan to allow for a residential development in an area formerly designated as
administrative and office space. After the time to challenge the general plan amendment
had passed, the City enacted a zoning ordinance to rezone the property to single-family
residential. Appellants collected signatures and properly filed a referendum to place the
zoning ordinance on the ballot. The City refused to place the referendum before the
voters because it believed if the referendum were successful it would be invalid since it
would resurrect the former zoning ordinance that was inconsistent with the amended
general plan. The trial court agreed and denied appellants’ petition.
        We reverse the trial court and conclude that the referendum was not invalid and
the issue must be placed on the ballot for a vote by the citizens of Lafayette. We further
remand for the trial court to consider appellants’ request for attorney fees under Code of
Civil Procedure section 1021.5.



                                             1
                                               II.
                 FACTUAL AND PROCEDURAL BACKGROUND
       This dispute arises over a 22-acre area of land in Lafayette known as Parcel 27
located on Deer Hill Road. In 2014, a developer proposed a residential development for
Parcel 27 known as “Homes at Deer Hill.” The new development included
approximately 44 single family homes, with 7.9 acres reserved for public parkland, as
well as a bike path and dog park. In June 2015, the City’s planning commission
recommended city council approval of a general plan amendment that rezoned Parcel 27.
        On August 10, 2015, the city council passed and adopted Resolution No. 2015-
50 amending the general plan designation of Parcel 27 from “Administrative Professional
Office” (APO) to “Low Density Single Family Residential,” also known as “Single
Family Residential District -20,” or R-20. The replaced APO designation allowed for up
to 35 dwelling units per acre. The new R-20 designation allows two dwelling units per
acre. The city council resolution states: “[T]he General Plan Amendment is consistent
with the other elements of the General Plan because the reduction in density better
protects the character of the residential neighborhoods and more closely mirrors the
pattern of development of residential neighborhoods north of Highway 24.” The
resolution further finds that the amendment creates a significant public benefit by
creating new parkland, a dog park, and a new sports field. It stated the resolution will
become effective 30 days after its adoption.
        After the general plan amendment became effective and could no longer be
challenged, on September 14, 2015, the council approved Ordinance No. 641 changing
the zoning designation of Parcel 27 from APO to R-20.
        On October 14, 2015, appellants filed a referendum challenging the approval of
the zoning ordinance. The referendum stated: “We, the undersigned, representing 10%
or more of the registered, qualified voters of the City of Lafayette hereby present this
petition protesting the adoption by the City Council of the City of Lafayette of Ordinance
No. 641.” It requested that the ordinance be repealed or alternatively submitted to a vote.
The referendum petition was timely submitted and contained the requisite number of


                                               2
signatures to be placed on the ballot. The city clerk notified appellants that the
referendum met the statutory requirements of the Elections Code.
           On December 14, 2015, the city attorney prepared a staff report. The report
noted that ordinarily once a referendum petition is certified, the ordinance is suspended
and the city council must reconsider the ordinance. Ordinance No. 641 had amended the
zoning to be consistent with the City’s newly amended general plan. But, the report
advised the city council that under Elections Code section 9241, it was not required to
repeal Ordinance No. 641 or to submit the referendum to the voters if the referendum
were invalid. Citing deBottari v. City Council (1985) 171 Cal.App.3d 1204 (deBottari),
the report advised that “a referendum seeking to repeal a zoning amendment which would
result in a zoning ordinance that is inconsistent with a general plan is a legally invalid
referendum.”
           In response to this staff report, on that same date the city council voted to refuse
to repeal the ordinance or to place the issue on the ballot. The city council stated that
repeal of the ordinance would result in reversion to APO zoning and create an
inconsistency between the zoning ordinance and the City’s general plan.1
       On March 17, 2016, appellants filed a first amended petition for peremptory writ
of mandate. The trial court denied the petition. The court stated that the City had a duty
to place the certified referendum on the ballot but its refusal, even if improper, may be
validated by a judicial declaration that the referendum was invalid. The City must
therefore make a “compelling showing” that the referendum is “clearly invalid.”
       The City argued the referendum would return Parcel 27 to APO zoning and create
an inconsistency with the general plan. Under the City’s municipal code, APO zoning is
designed for administrative and professional offices, not single family dwellings. (See
Lafayette Mun. Code, § 6-1002.) Appellants argued the existing zoning was not
necessarily inconsistent because APO zoning would allow for single family dwellings.

       1
         We grant appellants’ request we take judicial notice of the public records for the
City of Lafayette relevant to the issues on appeal (including the local ordinances and
legislative enactments.)

                                                3
Under Lafayette Municipal Code section 6-1004, subdivision (g), “any permitted uses on
a site smaller than two hectares (4.94) acres in size” was permitted in an APO-zoned area
with the issuance of a land use permit. The court concluded that sections 6-1004,
subdivision (g) and 6-1005 evidence a “clear intent by the City to regulate sites smaller
than two hectares in size by land use permit.” The court concluded that appellants’
interpretation that APO zoning allows for single family dwellings “strain[s] established
principles of statutory construction.” The court noted it must, “wherever possible,
construe an initiative measure to ensure its validity.” But here, “the City met its burden
and made a compelling showing that the referendum, if passed, will create an
inconsistency between the . . . general plan land use designation, including its’ objectives
and policies, and APO zoning.”
                                             III.
                                      DISCUSSION
   A. The City Improperly Interfered with the Referendum Process
       1. Referendum Process and Judicial Review
   The “local electorate’s right to initiative and referendum is guaranteed by the
California Constitution, article II, section 11, and is generally co-extensive with the
legislative power of the local governing body.” (DeVita v. County of Napa (1995)
9 Cal.4th 763, 775, fn. omitted.) Under Elections Code section 9237, if a petition
protesting the adoption of an ordinance is signed by more than 10 percent of the voters of
the city, “the effective date of the ordinance shall be suspended and the legislative body
shall reconsider the ordinance.” If the legislative body does not repeal the ordinance,
then it “shall submit the ordinance to the voters” and “[t]he ordinance shall not become
effective until a majority of the voters voting on the ordinance vote in favor of it.” (Elec.
Code, § 9241.) Local governments are not empowered to exercise discretion in
determining whether a duly certified referendum is placed on the ballot. (Save Stanislaus
Area Farm Economy v. Board of Supervisors (1993) 13 Cal.App.4th 141, 148 (Save
Stanislaus); Farley v. Healey (1967) 67 Cal.2d 325, 327 (Farley).) If the local
government believes an initiative or referendum is unlawful and should not be presented


                                              4
to voters, it should file a petition for a writ of mandate seeking to remove it from the
ballot. (Save Stanislaus, at p. 149.)
   The trial court may conduct a pre-election review of an initiative, but the standard is
one of great deference where “a court will remove an initiative from the ballot only ‘on a
compelling showing that a proper case has been established for interfering.’ ” (Save
Stanislaus, supra, 13 Cal.App.4th at p. 150, quoting Farley, supra, 67 Cal.2d at p. 327.)
If a city refuses to place a referendum on the ballot, “this refusal—improper as it is—may
be retroactively validated by a judicial declaration that the measure should not be
submitted to the voters.” (Save Stanislaus, at p. 149.)
       2. The Referendum Here Would Preserve the Status Quo
   The City argues this case is governed by deBottari, whereas appellants argue it is
governed by the recent decision in City of Morgan Hill v. Bushey (2017) 12 Cal.App.5th
34, review granted Aug. 23, 2017, S243042 (Bushey). Both cases present similar factual
scenarios to the case before us, but reach conflicting results.2
       In the 1985 decision of deBottari, the Norco City Council refused to submit a
properly certified referendum petition to the voters because it sought to repeal ordinances
that would result in a legally invalid zoning scheme. (171 Cal.App.3d at p. 1207.) A
developer had applied for a general plan amendment and zoning change from
residential/agricultural to residential low density. (Ibid.) The city council approved the
general plan amendment and then two weeks later, approved the zoning change. (Id. at
p. 1208.) The plaintiff submitted a referendum petition to repeal the zoning ordinances.
The city council refused to submit the referendum to the voters because repeal of the
ordinances would result in the property being zoned inconsistently with the newly
amended general plan. (Ibid.)
       The Fourth District held that the city council had a mandatory duty to submit
initiatives or referendums to the voters, unless it could make a compelling showing for
judicial interference. (deBottari, supra, 171 Cal.App.3d at p. 1210.) “ ‘[E]ven if a


       2
           At the time of the trial court’s decision, Bushey had not yet been decided.

                                               5
proposed measure is within the scope of the initiative power, courts retain equitable
discretion to examine the measure before the election upon a compelling showing that the
substantive provisions of the initiative are clearly invalid. [Citations].’ ” (Ibid.)
       The city’s general plan embodies “ ‘fundamental land use decisions that guide the
future growth and development of cities and counties.’ ” (deBottari, supra,
171 Cal.App.3d at p. 1211, quoting City of Santa Ana v. City of Garden Grove (1979)
100 Cal.App.3d 521, 532.) “State law prohibits enactment of a zoning ordinance that is
not consistent with the general plan. (Gov. Code, § 65860.) Were the voters to repeal the
zoning amendment at issue here, the result unquestionably would be a zoning ordinance
inconsistent with the amended general plan.” (deBottari, at p. 1210.) A zoning
ordinance that is inconsistent with the general plan at the time it is enacted is invalid. (Id.
at p. 1212.)
       The plaintiff argued that under Government Code section 65860, subdivision (c),3
the council had a “reasonable time” to bring an inconsistent zoning ordinance into
conformity with an amended general plan. (deBottari, supra, 171 Cal.App.3d at p. 1212.)
The court concluded it “would clearly distort the purpose of that provision were we to
construe it as affirmatively sanctioning the enactment of an inconsistent zoning
ordinance.” (Ibid.) The court further stated: “An even greater distortion of legislation
would result were we to approve the referendum on the ground that the council could
subsequently amend the general plan to conform with the zoning approved by the voters.
As is often noted, the general plan serves as the ‘constitution for all future developments
within the City.’ ” (Ibid., quoting O’Loane v. O’Rourke (1965) 231 Cal.App.2d 774, 782,
italics omitted.)
       Because, if passed, the referendum would enact an invalid zoning ordinance that
was inconsistent with the general plan, “[j]udicial deference to the electoral process does


       3
           Government Code, section 65860, subdivision (c) provides that if “a zoning
ordinance becomes inconsistent with a general plan by reason of amendment to the plan
. . . the zoning ordinance shall be amended within a reasonable time so that it is consistent
with the general plan as amended.”

                                               6
not compel judicial apathy towards patently invalid legislative acts.” (deBottari, supra,
171 Cal.App.3d at p. 1213.)
       The Sixth District recently reached the opposite conclusion in Bushey. In Bushey,
the city amended its general plan to change the land use designation for a parcel of
property owned by River Park from industrial to commercial. (Bushey, supra,
12 Cal.App.5th at p. 38.) A few months later, the city council approved an ordinance to
change the parcel’s zoning from “ML-Light Industrial” to “CG-General Commercial.”
(Ibid.) The general commercial zoning would permit a hotel to be built on the property.
(Ibid.) The Morgan Hill Hotel Coalition submitted a timely referendum challenging the
ordinance zoning change and seeking to prevent a hotel from being built on the property.
(Ibid.) The city refused to put the referendum on the ballot because it believed it would
enact zoning inconsistent with the newly amended general plan. (Ibid.)
       “ ‘A zoning ordinance that conflicts with a general plan is invalid at the time it is
passed.’ ” (Bushey, supra, 12 Cal.App.5th at p. 40, quoting Lesher Communications, Inc.
v. City of Walnut Creek (1990) 52 Cal.3d 531, 544 (Lesher).) “In the event that a zoning
ordinance becomes inconsistent with a general plan by reason of amendment to the plan,
or to any element of the plan, the zoning ordinance shall be amended within a reasonable
time so that it is consistent with the general plan as amended.” (Gov. Code, § 65860,
subd. (c).) “ ‘The obvious purpose of [Government Code section 65860,] subdivision (c)
is to ensure an orderly process of bringing the regulatory law into conformity with a new
or amended general plan. . . .’ ” (Bushey, at p. 40, quoting Lesher, at p. 546.)
       The city argued the voters could not use a referendum to reject the zoning
ordinance, “because [the] City’s discretion with respect to the zoning of the parcel was
preempted by [Government Code] section 65860’s mandate that the parcel’s zoning be
consistent with [the] City’s general plan.” (Bushey, supra, 12 Cal.App.5th at p. 40.) The
court rejected this argument noting that Government Code section 65860 preempted the
city from enacting new zoning that was inconsistent with the general plan, but it did not
preclude the city from exercising its discretion when choosing among several possible
zoning options. (Id. at pp. 40–41)


                                              7
       The Bushey court also distinguished between use of an initiative and a
referendum.4 The voters may not utilize the initiative power to enact zoning inconsistent
with a general plan because Government Code section 65860 preludes enactment of
zoning that is inconsistent with a general plan. However, the use of a referendum “to
reject or approve [the] City’s attempt to select a consistent zoning for the parcel simply
continued that permitted maintenance of inconsistent zoning. The referendum does not
seek to enact anything.” (Bushey, supra, 12 Cal.App.5th at p. 41, italics omitted; Lesher,
supra, 52 Cal.3d at p. 541.)
       In reaching this result, the Bushey court specifically disagreed with the holding in
deBottari: “We disagree with deBottari and hold that a referendum petition challenging
an ordinance that attempts to make the zoning for a parcel consistent with the parcel’s
general plan land use designation is not invalid if the legislative body remains free to
select another consistent zoning for the parcel should the referendum result in the
rejection of the legislative body’s first choice of consistent zoning.” (Bushey, supra,
12 Cal.App.5th 34 at pp. 37–38.)
       The Bushey court used this as a basis for concluding that the reasoning in
deBottari was “flawed.” (Bushey, supra, 12 Cal.App.5th at p. 42.) Unlike an initiative, a
referendum does not enact an ordinance. “A referendum that rejects an ordinance simply
maintains the status quo. Hence, it cannot violate [Government Code] section 65860,
which prohibits the enactment of an inconsistent zoning ordinance. Section 65860 does
not automatically render invalid a preexisting zoning ordinance that became inconsistent
only after a subsequent general plan amendment.” (Bushey, at p. 42.) The court
concluded the voters validly could utilize the power of referendum to reject the city’s
method of making the parcel’s zoning consistent with the general plan. (Ibid.)




       4
         “The referendum is the power of the electors to approve or reject statutes or parts
of statutes . . . .” (Cal. Const., art. II, § 9, subd. (a).) “The initiative is the power of the
electors to propose statutes and amendments to the Constitution and to adopt or reject
them.” (Cal. Const., art. II, § 8, subd. (a).)

                                               8
       Here, the City’s entire argument hinges on deBottari. deBottari concluded the city
could refuse to submit a referendum to the voters because it resulted in the enactment of
an invalid zoning ordinance that was inconsistent with the general plan. (deBottari,
supra, 171 Cal.App.3d at p. 1213.) However, as the Bushey court noted, a referendum
challenging the enactment of a zoning ordinance does not enact anything. (Bushey,
supra, 12 Cal.App.5th at pp. 41–42.) At most, the referendum would reject the new
ordinance and maintain the status quo. (Ibid.)
       Similarly, here appellants seek a referendum to vacate an ordinance; not enact one.
The referendum requests that the ordinance be repealed or submitted to a popular vote. If
the ordinance is submitted to a vote, the voters may vote to have it be enacted, causing no
conflict with the general plan. Alternatively, if the voters vote against it and it must be
repealed, then the city council could conceivably enact another zoning ordinance in its
place that is consistent with the general plan. Appellants suggest the City could select
another zoning option such as Low Density Residential (LR-5).
       Division One of this court addressed a similar issue in Merritt v. City of
Pleasanton (2001) 89 Cal.App.4th 1032 (Merritt). The Pleasanton General Plan
designated the property at issue as low density residential. (Id. at p. 1034.) The city
adopted an ordinance to approve prezoning of the property to low density residential.
(Ibid.) Before the ordinance went into effect, residents filed a referendum to allow voters
to decide if the ordinance should be adopted. (Ibid.) The referendum, Measure P, lost
with the majority of voters voting against prezoning to low density residential. (Id. at
p. 1035.) The developer filed a petition for a writ of mandate, arguing that the defeat of
Measure P caused an inconsistency with the general plan. (Ibid.)
       Division One first noted the fact the general plan designates the property for a
particular use does not create a mandate for immediate zoning or development. (Merritt,
supra, 89 Cal.App.4th at p. 1036.) The court distinguished deBottari and City of Irvine
v. Irvine Citizens Against Overdevelopment (1994) 25 Cal.App.4th 868, noting in both
cases, “the proposed rezoning was inconsistent with the general plan because it changed
the zoning from a usage that was consistent with the general plan to one that effectively


                                              9
precluded the usage designated in the general plan.” (Merritt, at p. 1036.) “In the present
case, the City’s general plan, while recognizing that at some point the property should be
developed for low-density residential usage, does not call for its immediate annexation
and development. Unlike the properties at issue in City of Irvine and deBottari, the
Property never has been zoned in a manner that permits the usage contemplated by the
general plan, and unlike the initiatives in those cases, the defeat of Measure P did not
rezone the property to preclude low-density residential housing. The defeat of Measure P
simply preserved the status quo.” (Id. at p. 1037.)
       While factually different from this case, Merritt supports the reasoning in Bushey
that putting a referendum on the ballot that may defeat a proposed rezoning preserved the
status quo; rather than the reasoning in deBottari that it is the referendum that creates an
inconsistency.
       The City’s alternative argument is that Bushey misinterpreted Government Code
section 65860, subdivision (c). Section 65860, subdivision (c) provides that if “a zoning
ordinance becomes inconsistent with a general plan by reason of amendment to the plan
. . . the zoning ordinance shall be amended within a reasonable time so that it is consistent
with the general plan as amended.” (Gov. Code, § 65860, subd. (c).) The City contends
this section applies in situations where an amendment to the general plan causes the
zoning ordinance to become inconsistent, but does not apply when a referendum creates
the inconsistency.
       In Lesher, our Supreme Court cited deBottari for the rule that “[a] zoning
ordinance that is inconsistent with the general plan is invalid when passed (deBottari[,
supra,] 171 Cal.App.3d [at p.] 1212; Sierra Club v. Board of Supervisors (1981)
126 Cal.App.3d 698, 704) and one that was originally consistent but has become
inconsistent must be brought into conformity with the general plan. ([Gov. Code,]
§ 65860).” (Lesher, supra, 52 Cal.3d at p. 541.) “The Planning and Zoning Law does
not contemplate that general plans will be amended to conform to zoning ordinances.
The tail does not wag the dog. The general plan is the charter to which the ordinance
must conform.” (Ibid.) The Lesher court held: “The obvious purpose of [section 65860]


                                             10
subdivision (c) is to ensure an orderly process of bringing the regulatory law into
conformity with a new or amended general plan, not to permit development that is
inconsistent with that plan.” (Lesher, at p. 546.) The initiative in Lesher was invalid
because the electorate did not have the power under state law to enact it. Here, Save
Lafayette is not seeking to enact an invalid initiative; they are seeking a referendum on
the City’s changed zoning ordinance.
       We agree that if the City amended the general plan to single family residential and
appellants sought to place an initiative on the ballot that would enact a zoning ordinance
for industrial use, then this would be improper under Government Code section 65860,
subdivision (c). But that is not the case before us. The referendum does not seek to enact
a new or different zoning ordinance; it simply seeks to put the existing ordinance before
the Lafayette voters. If the voters reject it, then the zoning ordinance returns to the status
quo, which was inconsistent at the time the city council amended the general plan. The
referendum does not create the inconsistency. This result simply stresses the need for a
city to amend its general plan and any conflicting zoning ordinance at the same time, in
order to avoid the result of creating an inconsistent zoning ordinance. Were it otherwise,
the holding in deBottari effectively precludes citizens from challenging tardy zoning
ordinances by referendum following amendments to general plans.
       Appellants argue the kind of situation that has arisen here is the reason that
Government Code section 65862 states: “It is the intent of the Legislature, in enacting
this section, that local agencies shall, to the extent possible, concurrently process
applications for general plan amendments and zoning changes which are needed to permit
development so as to expedite processing of such applications.”
       Each side blames the other for the procedural posture of the referendum.
Appellants contend that the city council created the inconsistency by first amending the
general plan and then waiting 30 days to adopt the zoning ordinance. They contend the
city council should have adopted the general plan amendment and ordinance at the same
time (see Gov. Code, § 65862), so the voters could have contested both, but instead they



                                              11
enacted the general plan amendment and waited until it was unreviewable before enacting
the zoning ordinance.
       The City argues appellants should have contested the general plan amendment
within 30 days of its enactment, rather than seeking a referendum on the zoning
ordinance. The City, however, cites no legal requirement for the voters to do so.
       Additionally, both parties and the trial court spent substantial time on the issue of
whether APO zoning would allow for single family residences. Appellants argue the
current zoning of Parcel 27 is not inconsistent with the general plan if Ordinance No. 641
is repealed or the voters vote against it. They argue the current zoning of APO would
allow for single family residences. The City disagrees. The trial court similarly found
the Lafayette Municipal Code could not be read to conclude APO zoning would allow for
single family residences. Given our conclusion the City erred in failing to present the
referendum to the voters, we need not address this issue. If the voters invalidate the
current zoning ordinance, then the City must address whether the existing zoning (APO)
allows for the Homes at Deer Hill development, or if there are alternative consistent
zoning ordinances that can be adopted.
       3. California Cannabis Coalition v. City of Upland
       In their reply brief, appellants place great weight on the Supreme Court’s recent
decision in California Cannabis Coalition v. City of Upland (2017) 3 Cal.5th 924
(Cannabis). We requested supplemental briefing from the City to address Cannabis,
which was published after it submitted its brief in this case. The City contends the
holding in Cannabis is not applicable here. The facts in Cannabis involved a voter
initiative to permit medical marijuana dispensaries and to require each dispensary to pay
an annual $75,000 licensing and inspection fee. (Id. at pp. 931-932.) The California
Cannabis Coalition collected signatures from 15 percent of the city’s voters and requested
a special election to consider the initiative pursuant to Elections Code section 9214
(section 9214). (Ibid.) The city concluded the $75,000 fee constituted a general tax and
could not be voted on in a special election. (Id. at p. 932.) The California Cannabis



                                             12
Coalition filed a writ of mandate alleging the city violated section 9214 by failing to hold
a special election on the initiative. (Ibid.)
       While the issue in Cannabis was not directly on point with our case—whether the
California Constitution restricted the ability of voters to impose taxes via initiative—our
Supreme Court did reiterate the importance of the initiative and referendum process.
“[W]e have held that the people’s power to propose and adopt initiatives is at least as
broad as the legislative power wielded by the Legislature and local governments.
[Citations.]” (Cannabis, supra, at p. 935.) The Constitution “ ‘speaks of the initiative
and referendum, not as a right granted the people, but as a power reserved by them.’
[Citation.] Since then, courts have consistently declared it their duty to ‘ “ ‘jealously
guard’ ” ’ and liberally construe the right so that it ‘ “ ‘ be not improperly annulled.’ ” ’
[Citations.]” (Id. at p. 934.) “Indeed, we resolve doubts about the scope of the initiative
power in its favor whenever possible. [Citation.]” (Id. at p. 936.) The ultimate holding
of Cannabis was the requirement that taxes be voted on in general elections only applies
to local governments and not to voter initiatives. (Id. at p. 943.) There, the city erred in
making a “unilateral determination that the proposed initiative constituted a general tax
and was therefore governed by [California Constitution] article XIII C, section 2 did not
relieve it of its obligation to adhere to section 9214—particularly given that the initiative
purported to propose a ‘fee’ and was thus, facially at least, not a tax measure.”
(Cannabis, at p. 948.)
       Appellants argue that like the city in Cannabis, the City here erred in making a
unilateral decision that the referendum was invalid and refusing to submit it to the voters.
We agree. The City’s process of enacting the general plan amendment and then waiting
30 days to enact the zoning ordinance should not prevent the citizens of Lafayette from
exercising their rights and voting to reject the rezoning of Parcel 27. The local electorate
properly submitted a referendum petition that was certified. The City should have either
suspended the ordinance or submitted the issue to the voters. (See Elec. Code, § 9237,
former § 9241.) The City did not have the discretion to keep the referendum off the
ballot, nor was there a “compelling showing” justifying its action. If the City believed


                                                13
that the referendum was invalid or illegal, the proper course of action was to file a writ of
mandate. (Save Stanislaus, supra, 13 Cal.App.4th at p. 149.)
B.     Request for Attorney Fees
       In their petition for a writ of mandate, appellants requested the award of
reasonable attorney fees pursuant to Code of Civil Procedure section 1021.5. The trial
court did not rule on this request presumably because it denied the petition. On appeal,
appellants request this court award attorney fees. The City does not address the issue in
their brief.
       Under Code of Civil Procedure section 1021.5, a court may award attorney fees to
a successful party in an action which enforces an important public right affecting the
public interest. “An award of attorney fees is proper under [Code of Civil Procedure]
section 1021.5 if (1) petitioners’ action resulted in the enforcement of an important right
affecting the public interest, (2) a significant benefit was conferred on the general public
or a large class of persons, and (3) the burden of private enforcement was such as to
make the award appropriate.” (Lindelli v. Town of San Anselmo (2006) 139 Cal.App.4th
1499, 1516, citing Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d
917, 935.)
       Although we recognize that an appellate court may decide the issue of attorney
fees under Code of Civil Procedure section 1021.5 in the first instance (Laurel Heights
Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 426), we
have a limited record upon which to consider the issue. The parties did not brief it
before the trial court and the City does not address it on appeal. Furthermore, the trial
court did not rule on it. We therefore remand to trial court to allow the issue to be
properly briefed and argued. (Concerned Citizens of La Habra v. City of La Habra
(2005) 131 Cal.App.4th 329, 334 [“The award of fees under [Code of Civil Procedure]
section 1021.5 is an equitable function, and the trial court must realistically and
pragmatically evaluate the impact of the litigation to determine if the statutory
requirements have been met.”]; Lindelli v. Town of San Anselmo, supra, 139 Cal.App.4th



                                             14
at p. 1517 [determination of the amount of fees “is a factual issue more properly
considered in the first instance by the trial court on remand”].)
                                             IV.
                                      DISPOSITION
       The judgment is reversed. We remand to the trial court to grant appellants’
petition for a writ of mandate and to determine if appellants are entitled to attorney fees
under Code of Civil Procedure section 1021.5.




                                             15
                                                    _________________________
                                                    RUVOLO, P. J.


We concur:


_________________________
REARDON, J.


_________________________
SCHULMAN, J.*




A149342, Save Lafayette v. City of Lafayette

       *
        Judge of the Superior Court of California, County of San Francisco, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.

                                               16
Trial Court:                                   Contra Costa County Superior Court

Trial Judge:                                   Hon. George V. Spanos

Counsel for Appellants:                        Gary S. Garfinkle, Maria J. Garfinkle

Counsel for Respondents:                       Best Best & Krieger, Scott W. Ditfurth, Alexandra
                                               A. Baca




A149342, Save Lafayette v. City of Lafayette



                                                 17
