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Animal Protection and Rescue League v. City of San Diego

California Court of Appeals, Fourth District, First Division

May 27, 2015

ANIMAL PROTECTION AND RESCUE LEAGUE et al., Plaintiffs and Respondents,
v.
CITY OF SAN DIEGO et al., Defendants and Appellants.

[CERTIFIED FOR PARTIAL PUBLICATION] [*]

APPEAL from a judgment and an order of the Superior Court of San Diego County, No. 37-2012-00086105-CU-WM-CTL Joel M. Pressman, Judge.

Page 100

[Copyrighted Material Omitted]

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COUNSEL

Jan I. Goldsmith, City Attorney, and George F. Schaefer, Deputy City Attorney, for Defendants and Appellants.

Law Office of Bryan Pease, Bryan W. Pease; Law Offices of Todd T. Cardiff and Todd T. Cardiff for Plaintiffs and Respondents.

OPINION

AARON, J.

I.

INTRODUCTION

The primary issue we must decide in this appeal is whether a municipality may be considered an "opposing part[y]" for purposes of the private attorney general fee statute (Code Civ. Proc., § 1021.5)[1] when it confesses error in response to a petition for writ of mandate challenging the municipality's action. In the published portion of this opinion, we conclude that a municipality may be considered an opposing party under such circumstances and that the trial court did not err in concluding that the municipality in this case was an opposing party and awarding private attorney general fees to respondents. In the unpublished portion of this opinion, we conclude that the trial court did not abuse its discretion in awarding respondents attorney fees for certain work performed prior to the filing of the petition in this case, that the trial

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court erred in awarding respondents costs in light of their failure to file a memorandum of costs as required under the California Rules of Court, and that respondents are entitled to appellate attorney fees in an amount to be determined on remand.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Respondents' petition for writ of mandate and appellants' confession of error

In November 2012, respondents Animal Protection and Rescue League, Friends of the Seals, Ellen Shively, Deborah Saracini, Shannon Player, Robb Meade, Marilies Schoepflin, Dorota Valli, and Jerry Horna (collectively "APRL") brought a petition for writ of mandate against appellants City of San Diego and its planning commission (the City"), [2] coupled with a request for injunctive and declaratory relief. In its petition, APRL noted that the present litigation was related to a long-running dispute concerning whether the City should maintain a year-round guideline rope at the La Jolla Children's Pool for the purpose of protecting harbor seals from humans. APRL sought an order requiring the City to vacate and set aside the planning commission's denial of a permit for the guideline rope and to reinstate the findings of a hearing officer in support of the permit.

Approximately three months later, the City filed an answer in which it confessed error and conceded that the "Planning Commission erred when it denied the Site Development Permit for an annual rope barrier." The City stated that it did "not oppose lawful writ relief, including a Court order directing that the denial of a Site Development Permit be set aside."

B. Friends of the Children's Pool's participation in the case

On March 12, 2013, APRL filed an ex parte application for an order to show cause seeking entry of judgment in the case. In the application, APRL stated that "[b]ecause related case Friends of Children's Pool v. City of San Diego, case number 37-2013-0003894-CU-WM-CTL will be made moot by APRL's writ petition being granted, this party [Friends of the Children's Pool)] will likely wish to be heard as well." The following day, the trial court held a hearing on APRL's application and granted Friends of the Children's

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Pool (FOCP) the right to file an opposition to APRL's anticipated filing of a motion for entry of judgment on ...


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