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Save Our Heritage Organisation v. City of San Diego

California Court of Appeals, Fourth District, First Division

April 27, 2017

SAVE OUR HERITAGE ORGANISATION, Plaintiff and Respondent,
v.
CITY OF SAN DIEGO et al., Defendants and Respondents

         APPEAL from an order of the Superior Court of San Diego County, No. 37-2012-00102270-CU-TT-CTL Timothy B. Taylor, Judge. Affirmed.

          Seltzer Caplan McMahon Vitek and G. Scott Williams for Real Party in Interest and Appellant Plaza de Panama Committee.

          Brandt-Hawley Law Group and Susan Brandt-Hawley for Plaintiff and Respondent Save Our Heritage Organisation.

          No appearance for Defendants and Respondents City of San Diego et al.

          McCONNELL, P. J.

         Plaza de Panama Committee (the Committee) appeals from an order denying its motion for attorney fees under Code of Civil Procedure section 1021.5.[1] The Committee filed the motion after it successfully appealed a judgment granting a petition for writ of mandamus filed by Save Our Heritage Organisation (SOHO), in which SOHO challenged the approval by the City of San Diego (City) of a site development permit for a revitalization project in Balboa Park (the project). (See generally Save Our Heritage Organisation v. City of San Diego (2015) 237 Cal.App.4th 163 (Save Our Heritage Organisation).)

         This appeal presents two related issues: whether the Committee, as a project proponent, may obtain a section 1021.5 attorney fees award and, if so, whether the court may impose such an award against SOHO.[2] We conclude a project proponent may obtain a section 1021.5 attorney fees award if the project proponent satisfies the award's requirements. We further conclude, while SOHO does not dispute the Committee satisfied the award's requirements, SOHO is not the type of party against whom the court may impose such an award because SOHO did nothing to compromise public rights. (Adoption of Joshua S. (2008) 42 Cal.4th 945, 958 (Joshua S.); accord, Serrano v. Stefan Merli Plastering Co., Inc. (2011) 52 Cal.4th 1018, 1020 (Serrano).) We, therefore, affirm the order.

         I

         BACKGROUND

         The Committee was founded to shepherd the project through the design and review process. (Save Our Heritage Organisation, supra, 237 Cal.App.4th at p. 170.) The project involved closing off parts of Balboa Park to vehicle traffic and diverting the traffic via a new bridge to a new pay-parking structure. (Id. at pp. 169-171.) After the City approved the project, SOHO filed a petition for writ of mandamus against the City, as respondent, and the Committee, as real party in interest, challenging the City's decision on multiple grounds related to the project's effects on the environment, historical resources, and land use. The superior court granted the petition on some of the grounds and entered a judgment directing the City to rescind the project approval. (Save Our Heritage Organisation, supra, 237 Cal.App.4th at p. 172.)

         The City did not appeal the judgment. However, the Committee and SOHO each appealed aspects of it. (Save Our Heritage Organisation, supra, 237 Cal.App.4th at pp. 169, 188.) We rejected SOHO's arguments and reversed the judgment because SOHO had not established the City abused its discretion in approving the project. (Id. at pp. 172-173, 179, 181-182, 188, 192.)

         The Committee subsequently filed a motion in the superior court for an award of attorney fees under section 1021.5 for the time its counsel spent working on the appeal and on the fee motion.[3] The Committee argued it satisfied the award's requirements because it was the successful party, the project approval it vindicated conferred a substantial benefit on the general public, its efforts were necessary to vindicate the project approval because the City did not appeal the judgment, and the cost of securing the appellate result transcended the Committee's nonexistent pecuniary interest in the project.

         SOHO opposed the motion, arguing attorney fees awards under section 1021.5 are not available to project proponents because awarding such fees to project proponents conflicts with section 1021.5's intent to encourage public interest litigation. ...


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