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Ebbetts Pass Forest Watch v. California Dep't of Forestry and Fire Protection

August 10, 2010


APPEAL from a judgment of the Superior Court of Tuolumne County. James A. Boscoe, Judge. (Super. Ct. No. CV48910).

The opinion of the court was delivered by: Ardaiz, P. J.




This case presents the issue of what constitutes a "successful party" under the private attorney general doctrine contained in Code of Civil Procedure section 1021.5.

Sierra Pacific Industries (SPI) submitted and California Department of Forestry and Fire Protection (CDF) approved three timber harvest plans (Plans) for logging in Tuolumne County. Two conservation groups, Ebbetts Pass Forest Watch and the Central Sierra Environmental Resource Center (plaintiffs) sought to overturn the approvals contending that CDF had not followed the law in approving the Plans. The California Supreme Court upheld the Plans finding they "did not suffer from the asserted legal flaws plaintiffs identify" and plaintiffs were not entitled to relief. (Ebbetts Pass Forest Watch v. California Dept. of Forestry & Fire Protection (2008) 43 Ca1.4th 936, 958 (Ebbetts Pass)). Despite this defeat, plaintiffs contend they are the "successful party" entitled to attorney fees of $250,819 under the private attorney general doctrine contained in Code of Civil Procedure section 1021.5 (§ 1021.5).*fn1 The trial court disagreed and denied the fee request. We will affirm. In our view, the granting of attorney's fees under the private attorney general doctrine would be an unwarranted expansion of section 1021.5. For the reasons stated infra, we conclude plaintiffs were not "successful" within the meaning of that provision and have not justified fees pursuant to that statute.


In May 2002, plaintiffs filed a petition for writ of mandate and asserted the Plans failed to comply with the Z'bergNejedly Forest Practice Act of 1973; (FPA)*fn2 the rules promulgated by the Board of Forestry under the Forest Practice Act,*fn3 and the California Environmental Quality Act (CEQA).*fn4 Specifically, the petition alleged that CDF had failed (1) to assess the cumulative impacts on sensitive wildlife species on a regional basis,*fn5 and (2) to assess adequately the potential significant impacts of herbicide use associated with the Plans. The prayer for relief requested (1) a peremptory writ of mandate ordering CDF to withdraw approval of the Plans, and (2) a permanent injunction enjoining the proposed timber operations until the Plans complied with California regulations and statutes. The prayer included a catch-all request for "such other and further relief as the court deems proper," but did not include a request for declaratory relief, such as a declaration of CDF's authority and duty to analyze herbicide use.

In March 2003, the trial court denied plaintiffs' petition for a writ of mandate. The court found CDF did not act in excess of its jurisdiction in approving the Plans, the approval was supported by the findings and the findings were supported by substantial evidence in the record. This court's 2006 decision reversed the superior court and directed it to issue the writ of mandate.


In 2008, the California Supreme Court reversed the judgment of the Court of Appeal and remanded the matter for further proceedings. (Ebbetts Pass, supra, 43 Ca1.4th at p. 958.) On remand, this court affirmed the trial court's denial of plaintiffs' petition for writ of mandate.

Subsequently, plaintiffs filed a motion for attorney fees under section 1021.5 and claimed they were a successful party because the published decision of the California Supreme Court clarified the law regarding CDF's authority and duty to analyze herbicide use. The motion asserted counsel had expended a total of 845.6 hours in the matter and that time was worth $374,357. Plaintiffs argued that, after a reasonable adjustment, they should be awarded attorney fees in the amount of $250,819. The trial court denied the motion and plaintiffs filed a timely notice of appeal.


Section 1021.5 Attorney Fees Awards

Plaintiffs contend they were a successful party for purposes of section 1021.5 because they succeeded on their herbicide claims. SPI and CDF counter that plaintiffs were not a successful party because they failed on every claim asserted, judgment was entered against them and costs were awarded to CDF.

A. Standard of Review

Generally, whether a party has met the statutory requirements for an award of attorney fees is best decided by the trial court, whose decision we review for abuse of discretion. (Nestande v. Watson (2003) 111 Cal.App.4th 232, 238.) On review, 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. (Marine Forests Society v. California Coastal Com. (2008) 160 Cal.App.4th 867, 876.) When an appellate court issues an opinion, it is arguably in as good a position as the trial court to determine whether the legal right enforced through its opinion meets any of the three criteria of section 1021.5. (Protect Our Water v. County of Merced (2005) 130 Cal.App.4th 488, 494.) In this case, however, it is not the appellate court's opinion that resolved the lawsuit. Rather, the Supreme Court's opinion, which reversed the appellate court's opinion, is the relevant document for determining whether plaintiffs met the statutory requirements entitling them to attorney fees. Therefore, we will review the trial court's decision to deny attorney fees for abuse of discretion.

B. Statutory Elements

Section 1021.5 codifies the private attorney general doctrine, which provides an exception to the "'American rule'" that each party bears its own attorney fees. (Olson v. Automobile Club of Southern California (2008) 42 Cal.4th 1142, 1147.) The fundamental objective of the private attorney general doctrine is to encourage suits enforcing important public policies by providing substantial attorney fees to successful litigants in such cases. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 565.) Under section 1021.5, the court may award attorney fees to (1) a successful party in any action (2) that has resulted in the enforcement of an important right affecting the public interest (3) if a significant benefit has been conferred on the general public or a large class of persons, and (4) the necessity and financial burden of private enforcement are such as to make the award appropriate. (Ibid.) The burden is on the claimant to establish each prerequisite to an award of attorney fees under section 1021.5. (Serrano v. Stefan Merli Plastering Co., Inc. (2010) 184 Cal.App.4th 178, 185.)

i. Successful Party

A party seeking an award of section 1021.5 attorney fees must first be "a successful party." A favorable final judgment is not necessary; the critical fact is the impact of the action. (Graham v. DaimlerChrysler Corp., supra, 34 Cal.4th at p. 565.) Plaintiffs may be considered successful if they succeed on any significant issue in the litigation that achieves some of the benefit they sought in bringing suit. (Maria P. v. Riles (1987) 43 Ca1.3d 1281, 1292.) But, there must be some qualitative selectivity because section 1021.5 specifically refers to litigation that vindicates "important" rights. It does not encompass the enforcement of "any" or "all" statutory rights. (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 935.) Thus, in determining whether a party is successful, the court must critically analyze the surrounding circumstances of the litigation and pragmatically assess the gains achieved by the action. (Concerned Citizens of La Habra v. City of La Habra (2005) 131 Cal.App.4th 329, 334 (Concerned Citizens).)

C. Case Law

Plaintiffs rely on two cases, which they contend support their fee request. In Harbor v. Deukmejian (1987) 43 Ca1.3d 1078 (Harbor), petitioners sought a peremptory writ of mandate and challenged the Governor's constitutional authority to veto a single provision of a bill containing 71 sections enacting, amending and repealing numerous provisions in numerous codes. (Id. at p. 1083.) The Supreme Court, agreeing with petitioners, held that the Governor was without authority to exercise a line-item veto because the provision stricken did not constitute an appropriation. (Id. at pp. 1089-1093.) The Court also held that the bill violated the single subject rule, and the Governor would have had the authority to veto the section at issue had it been properly enacted as a separate bill. (Id. at pp. 1101-1102.) The court noted that retroactive application of that ruling, however, would open the door to challenges of many other provisions of substantive law contained in similar acts. Thus, both rulings would be applied prospectively. As a result, the court denied petitioners relief. (Ibid.) The court held, however, that petitioners were entitled to attorney fees under section 1021.5. They were the successful party because the Court's decision vindicated the principle upon which they brought the action, that the Governor's power to veto legislation could not be exercised to invalidate part of a bill that was not part of an appropriation bill. (Harbor, supra, 43 Cal. 3d at p. 1103.)

In the second case, Sagaser v. McCarthy (1986) 176 Cal.App.3d 288 (Sagaser), plaintiffs brought a CEQA challenge to the construction of a prison that the Court of Appeal dismissed as moot following the Legislature's passage of a bill that exempted the proposed prison from CEQA compliance. (Id. at p. 298.) Regarding attorney fees, the court noted that the legislation also prohibited the prison from using local groundwater, the requested result of one of plaintiffs' dismissed causes of action and their primary area of environmental concern. The Court remanded the matter to the trial court to determine if plaintiffs' lawsuit affected the Legislature's decision to prohibit the use of ground water. (Id. at p. 315.) If such a showing was made, plaintiffs would be deemed successful parties and would be entitled to attorney fees under a catalyst theory of recovery. (Ibid.)

Both cases are distinguishable. In Harbor, the Court agreed with petitioners' primary contention but, for policy reasons, decided not to provide petitioners with the benefit of that conclusion. Harbor involves a unique circumstance. In granting fees the Court stated, "We believe [petitioners] are entitled to such an award, even though their named clients have not personally benefitted. They are the 'successful' party in that the impact of our decision is to vindicate the principle upon which they brought this action, i.e., that the Governor's power to veto legislation cannot be exercised to invalidate part of a bill which is not part of an appropriation bill.... It is obvious that private enforcement to give effect to [the specific provision] was necessary since the director of the department refused to promulgate regulations to implement the section." (Harbor, supra, 43 Cal.3d at p. 1103).

In other words, the parties were forced to bring the lawsuit in order to enforce their rights under the statute and to assert that the Governor could not veto for the reason stated. In effect, while they lost on their basic assertion to enforce a right they argued was wrongly vetoed, the consequence was a significant determination of the Governor's veto power and the conclusion that the Governor could not do what he did.

In Sagaser, supra, 176 Cal.App.3d 288, the court remanded the case for a determination of whether the lawsuit was the catalyst for the Legislature's decision to prohibit the prison's use of groundwater, a primary goal of the lawsuit. Like Harbor, supra, 43 Cal.3d 1078, the award of attorney fees was based on the fact that the moving parties had or potentially had prevailed on their primary claim. In contrast, plaintiffs here lost on their primary contention that CDF's approval of the Plans must be overturned because SPI and CDF had not followed the law in analyzing the effects of potential herbicide use.

This case is more analogous to Concerned Citizens, supra, 131 Cal.App.4th 329. There, petitioners sought a writ of mandate challenging the approval of a proposed Costco warehouse facility. They alleged six causes of action, one of which was the failure to comply with CEQA. The court rejected five of the causes of action, but agreed with one of the alleged CEQA defects, and found that a mitigated negative declaration certified by the City needed revision. The City had failed to support its conclusion that the project would generate an insignificant increase in traffic through the adjacent neighborhoods. The trial court issued a writ rescinding approval of the project until the revision was made. (Id. at pp. 331-333.) Subsequently, petitioners moved for attorney fees under section 1021.5, but the superior court denied the request finding that petitioners were successful in one small regard and were unsuccessful on all significant issues. (Id. at p. 333.)

On appeal, petitioners argued the litigation conferred a significant benefit on a large segment of the public. They asserted that all commuters in the vicinity of the project benefited from requiring the City to comply with CEQA, which was enacted to protect the public interest. (Concerned Citizens, supra, 131 Cal.App.4th at pp. 334-335.) The Court of Appeal disagreed and held the mere vindication of a statutory violation was not sufficient to be considered a substantial benefit by itself. (Id. at p. 335.) While the trial court agreed the project did not adequately support the conclusion that the effects of cut-through traffic were mitigated, it felt the inadequacy was a "'minute blemish'" that could be repaired. At best, petitioners had successfully asserted a defect in CEQA's process, the correction of which was not likely to change the project. (Ibid; and see, Marine Forests Society v. California Coastal Com., supra, 160 Cal.App.4th at pp. 879-880 [corporation that unsuccessfully challenged a Coastal Commission authority to require it to remove an experimental reef was not entitled to attorney fees. Even though the action resulted in the amendment of the statute governing the composition of the Commission, the corporation did not achieve its primary goal of preventing removal of the reef].)

Analogously, in Karuk Tribe of Northern California v. California Regional Water Quality Control Bd., North Coast Region (2010) 183 Cal.App.4th 330 (Karuk Tribe), petitioners sought a writ of mandate to compel a regional water quality control board to apply state law with regard to hydroelectric dams operating under a federal license. On its own initiative, the trial court remanded the matter back to the Board to provide "a more complete" explanation of its decision rejecting petitioners' request. Subsequently, the trial court agreed with the Board that they were without authority to enforce the state's law. (Id. at pp. 334-335.) Despite the defeat, the trial court awarded attorney fees under section 1021.5 to petitioners finding that the "litigation had resulted in the 'important public benefit' of the Board making 'a thoughtful and well-reasoned determination' concerning its lack of authority to enforce state law." (Id. at pp. 334-335.)

The appellate court reversed the attorney fee order. Petitioners did not qualify as successful parties because they did not achieve their strategic objective. Nor did the action result in the enforcement of an important right affecting the public interest or confer a significant benefit on the general public or a large class of persons. As a result of the litigation, the Board merely augmented the reasoning behind its decision that it was without authority to grant the petitioners' request that it enforce state law. As a matter of law, the court concluded, it was not worth $138,250 to have a state agency polish up the reasoning supporting a decision that was already more than legally sufficient. (Karuk Tribe, supra, 183 Cal.App.4th at p. 335.)

D. Analysis

Here, the trial court denied attorney fees based on its conclusions that (1) the lawsuit did not result in any change to the Plans under review, (2) the Supreme Court's decision did not establish new case law, (3) CDF's misunderstanding of the law did not result in a dereliction of its duties under CEQA, and (4) CDF's behavior would not change prospectively as a result of the litigation because CDF had conducted the environmental impact assessments in regards to herbicide application as required by CEQA for timber harvest plans. In short, the litigation did not result in the vindication of an important right affecting the public interest and plaintiffs had not achieved any of the benefits sought in bringing the litigation.

On appeal, plaintiffs assert they succeeded on their herbicide claims in three regards. The Supreme Court agreed with their assertions that CDF erred by stating (1) it lacked authority to regulate herbicide applications on private lands, (2) any use of herbicides in compliance with Department of Pesticide Regulation restrictions could not have any significant impact on the environment, and (3) SPI's post-harvest use of herbicides was too speculative to be part of the project subject to CEQA. Further, they vindicated an important right, the fundamental legislative goals of CEQA and the FPA to protect the environment, and conferred a significant ...

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