On 12/01/2015 RAO BOPPANA filed an Other - Writ Of Mandamus lawsuit against CITY OF LOS ANGELES. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Disposed - Judgment Entered.
Disposed - Judgment Entered
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
LOS ANGELES CITY OF
DOES ONE THROUGH TEN
DOES ELEVEN THROUGH TWENTY
CRAIG A. SHERMAN A PROF. LAW CORP.
TURNER KEITH J. ESQ.
DERMER GABRIEL S.
ATWOOD K. LUCY
POPOOLA TAYO A. DEPUTY CITY ATTORNEY
POPOOLA TAYO A. DEPUTY CITY ATTORNEY
6/29/2018: NOTICE OF RELATED CASE
12/7/2015: NOTICE OF RELATED CASE
1/22/2016: DEFENDANT CITY OF LOS ANGELES' ANSWER TO PETITION FOR WRIT OF MANDATE
2/4/2016: REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF NOLAN?S DEMURRER TO COMPLAINT
5/4/2016: DECLARATION OF CRAIG A. SHERMAN IN SUPPORT OF PETITIONER'S OPPOSITION TO DEMURRER
5/4/2016: PETITIONER'S REQUEST FOR JUDICIAL NOTICE IN OPPOSITION TO DEMURRER
5/10/2016: REPLY TO PETITIONER'S RESPONSE TO NOLAN'S REQUEST AND AMENDED REQUEST FOR JUDICIAL NOTICE
8/23/2016: Minute Order
8/29/2016: NOTICE OF TRIAL
12/1/2016: NOTICE OF CHANGE OF ADDRESS OR OTHER CONTACT INFORMATION
1/25/2017: DECLARATION OF CRAIG A. SHERMAN IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS
1/27/2017: NOTICE OF ERRATUM TO MEMORANDUM FILED BY PETITIONERS RAO AND RITA BOPPANA.IN SUPPORT OF PETITION
2/14/2017: DECLARATION OF JIM BUR.MAN
4/20/2017: Minute Order
5/25/2017: NOTICE OF FILING OF [PROPOSED] JUDGMENT
6/27/2017: NOTICE OF DESIGNATION OF REPORTER'S TRANSCRIPT
7/13/2017: NOTICE OF DEFAULT
at 08:30 AM in Department 85; (Order ReRelated Cases; Denied) -Read MoreRead Less
Minute OrderRead MoreRead Less
NOTICE OF RELATED CASERead MoreRead Less
Notice of Related Case; Filed by Los Angeles, City of (Defendant)Read MoreRead Less
NOTICE OF RELATED CASERead MoreRead Less
NOTICE TO REPORTER TO PREPARE TRANSCRIPT ON APPEAL PER CRC RULE 8.124Read MoreRead Less
AMENDED APPELLANTS' DESIGNATION OF REPORTER'S TRANSCRIPT [BY COURT ORDER]Read MoreRead Less
Notice of Designation of Record; Filed by Rao Boppana (Plaintiff); Rita Boppana (Plaintiff)Read MoreRead Less
Ntc to Attorney re Notice of Appeal; Filed by ClerkRead MoreRead Less
NOTICE OF DEFAULTRead MoreRead Less
PROOF OF SERVICE OF SUMMONSRead MoreRead Less
Proof of Service (not Summons and Complaint); Filed by Rao Boppana (Plaintiff)Read MoreRead Less
NOTICE OF RELATED CASERead MoreRead Less
Notice of Related Case; Filed by Rao Boppana (Plaintiff); Rita Boppana (Plaintiff)Read MoreRead Less
NOTICE OF TRIAL SETTING CONFERENCE & ATTACHED ORDERS THEREONRead MoreRead Less
Notice of Trial Setting Conference and Attached Orders Thereon; Filed by ClerkRead MoreRead Less
Notice of Trial Setting Conference and Attached Orders Thereon; Filed by ClerkRead MoreRead Less
SUMMONSRead MoreRead Less
PETITION FOR WRIT OF MANDATERead MoreRead Less
Petition; Filed by nullRead MoreRead Less
Case Number: BS159371 Hearing Date: January 14, 2020 Dept: 85
Rao Boppana, et al. v. City of Los Angeles, et al., BS159371
Tentative decision on decision on motion for attorney’s fees: denied
Petitioners Rao and Rita Boppana (the “Boppanas”) move for an award of attorney’s fees jointly and severally against Respondent City of Los Angeles (“City”) and Real Party-in-Interest Robert Nolan (“Nolan”).
The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.
A. Statement of the Case
Petitioners the Boppanas commenced this proceeding on December 1, 2015. The operative pleading is the First Amended Petition (“FAP”) filed June 17, 2016. The FAP alleges in pertinent part as follows.
Real Party Nolan owns the real property and residence located at 7830 Berger Avenue, Playa Del Rey, Los Angeles, CA 90293 (“Property”). On September 29, 2014, the Boppanas filed a civil complaint against Nolan in Los Angeles Superior Court Case No. BC554633, (the “Damages Action”) alleging that Nolan constructed a series of illegal structures and developments on his Property. On March 24, 2015, the City granted Nolan one or more after-the-fact building and other development permits for an already built accessory recreation room building on the Property. The City’s and Nolan’s withholding of the application materials for the March 2015 approvals precluded the Boppanas from obtaining information necessary to filing this writ petition lawsuit any earlier.
On November 12, 2015, the Boppanas learned that the City granted Nolan a right to use, occupy and maintain multiple illegally constructed fences, block walls and gates in an area outside of his Property along and inside the streets and right-of-ways of Berger Avenue and Veragua Walk in violation of City ordinances. The City granted Nolan a Revocable Permit (“R-Permit”).
An R-Permit shall only be granted after a review process that ensures that encroachments are checked for compliance with the City’s specifications for design, use, material, and inspection. Before an R-Permit can be issued, a diagram must be provided showing all encroachments with dimensions, elevations, details, north arrow, and adjacent street names. The allowable height of fences, walls, and gates for encroachments for revocable permits is controlled by the City's zoning code. Planning Department approval is required for over-height fences, walls, and gates. No encroachments under a revocable permit are allowed near utility appurtenances (such as water meter boxes, gas shut-off valve boxes, street light and traffic signal conduit and pull boxes, and parking meters) where the width of the sidewalk is less than a standard seven feet.
The R-Permit was unlawfully allowed and granted. The drawing and diagram submitted do not contain the minimally required information. The approval failed to consider the design, uses, and materials of the structures approved. The structures approved do not meet the height requirements for fences, walls, and gates pursuant to the Zoning Code. There has been no approval for any variance of the applicable development and zoning codes. By allowing the R-Permit to be issued, City failed to comply with its own laws, policies, and ordinances, and has failed to proceed in a manner required by law.
2. Course of Proceedings
On May 17, 2016, the court sustained Real Party Nolan’s demurrer to the Petition. The demurrer to the Petition’s claims against the Department of Building and Safety was sustained without leave to amend. The demurrer to the claims against the Department of Public Works were sustained with leave to amend.
The Boppanas filed the FAP on July 29, 2016 and Respondent City answered on August 3, 2016.
On April 21, 2017, the court denied the Boppanas’ petition for writ of mandate.
On March 19, 2019, the Court of Appeal reversed the court’s decision. The appellate court noted that the Boppanas and Nolan live next to each other in a residential neighborhood on a coastal bluff in Playa del Rey. There is a ten-foot wide public right-of-way, Veragua Walk, between the two properties and a public trail and small park abutting a vacant lot owned by Nolan on the other side. Sherman Dexl., Ex. 2, p.3.
In 2006, Nolan built a security fence, driveway gate, and other improvements to his property. He built a six-foot fence, two wooden sliding gates, seven pillars, a wooden pedestrian gate, and a wrought-iron fence in front of his house along approximately 100 feet of a public street, Berger Avenue, which did not have a sidewalk. He built a concrete block wall, and chain-link fence, a planter box and two sets of concrete steps along Veragua Walk. Ex. 2, p.3. In 2015, nine years later, Nolan applied to the BOE for an R-Permit to maintain these improvements, which was issued. Ex. 2, p.4.
The Boppanas sought mandamus to compel the City to revoke the R-Permit. Ex. 2, p.4. The City and Nolan did not dispute that Nolan would have had to comply with the Building Code, Zoning Code, and Specific Plan had he built the improvements on his property instead of the public right-of-way. Ex. 2, pp.6-7. The City and Nolan argued that these provisions do not apply to an R-Permit issued by the BOE pursuant to LAMC section 62.118.2, which governs structures which encroach upon the public right-of-way. Ex. 2, pp. 7-8.
The appellate court found that LAMC section 62.118.2 is ambiguous. Ex. pp.8, 10. The BOE’s Manual supported the Boppanas’ interpretation of LAMC section 62.118.2 that the R-Permit issuance for encroachments on a public right-of-way must comply with the Building Code, Zoning Code, and Specific Plan. Ex. 2, pp. 13-14. Therefore, The BOE had a mandatory, ministerial duty to consider the Building Code, Zoning Code, and Specific Plan, and the trial court should have granted the Boppanas’ petition. Ex. 2, p.22. The appellate court remanded the case with directions for this court to issue a writ of mandate compelling the City to revoke the permit it issued to Nolan. Ex. 2, p.23.
Based on this direction, on September 24, 2019 the court reversed its judgment and issued a writ in favor of the Boppanas.
B. Applicable Law
CCP section 1021.5 (“section 1021.5”) codifies the “private attorney general” exception to the general rule that each side bears its own fees unless the parties contracted otherwise. See CCP §1021. Section 1021.5 permits a trial court to award fees to a successful party in any action that: “has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit 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. The issue is committed to the trial court’s discretion. Flannery v. California Highway Patrol, (“Flannery”) (1998) 61 Cal.App.4th 629, 634.
The courts take a “broad, pragmatic view of what constitutes a ‘successful party’” in order to effectuate the policy underlying section 1021.5. Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 565. The party seeking attorney’s fees need not prevail on all claims in order to qualify for an award. Harbor v. Deukmejian, (1987) 43 Cal.3d 1078, 1103; Daniels v. McKinney, (1983) 146 Cal.App.3d 42, 55. A party is considered successful under section 1021.5 if the litigation “contributed substantially to remedying the conditions at which it was directed.” Planned Parenthood v. Aakhus, (1993) 14 Cal.App.4th 162, 174. In other words, the successful party under section 1021.5 is the party that succeeds on “any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Maria P. v. Riles, (“Maria P.”) (1987) 43 Cal.3d 1281, 1292; see Tipton-Whittingham v. City of Los Angeles, (2004) 34 Cal.4th 604, 610. Prevailing counsel who qualify for an award under section 1021.5 are entitled to compensation for all hours reasonably spent. Serrano v. Unruh, (1982) 32 Cal.3d 621, 632–633.
The “significant benefit” necessary for a section 1021.5 fee award need not represent a concrete gain; in some cases a significant benefit may be recognized simply from the effectuation of a fundamental constitutional or statutory policy. Woodland Hills Residents Assn., Inc. v. City Council, (“Woodland Hills”) (1979) 23 Cal.3d 917, 939; Braude v. Automobile Club of Southern Cal., (1986) 178 Cal.App.3d 994, 1011. Moreover, the extent of the public benefit need not be great to justify an attorney fee award. See, e.g., Protect Our Water v. County of Merced, (2005) 130 Cal.App.4th 488, 496 (significant public benefit where litigation prompted agency to improve methods of creating and managing its CEQA records). The trial court determines “the significance of the benefit, as well as the size of the class receiving benefit, from a realistic assessment, in light of all the pertinent circumstances, of the gains which have resulted in a particular case.” Woodland Hills, supra, 23 Cal.3d at 939–40.
The party seeking attorney’s fees must show that the necessity for pursuing the lawsuit placed a burden on the plaintiff “out of proportion to his individual stake in the matter.” Woodland Hills, supra, 23 Cal. 3d at 941. Although case law refers to this requirement as the “financial burden” criterion, nothing in the language of CCP section 1021.5 limits the consideration of the necessity and financial burden clause to solely financial interests. Hammond v. Agran, (2002) 99 Cal.App.4th 115, 125. “The idea is that the litigation for which fees are claimed must transcend one's interests, whether pecuniary or not.” Id. at 127. The financial burden question is whether advancement of the public interest was merely coincidental to attainment of the party’s personal goals. Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173, 181. The party seeking attorney’s fees must show that its litigation costs transcend its personal interests. Save Open Space Santa Monica Mountains v. Superior Court, (2000) 84 Cal.App.4th 235, 247. The trial court's application of the financial burden criterion involves a “realistic and practical comparison of the litigant's personal interest with the cost of suit.” Families Unafraid to Uphold Rural El Dorado County v. Bd. of Supervisors, (2000) 79 Cal.App.4th 505, 515.
C. Statement of Facts
1. Petitioners’ Evidence
The Boppanas’ counsel, Craig A. Sherman (“Sherman”), opines that a current reasonable hourly rate for his work as an attorney in the Los Angeles community with his experience is $650. Sherman Decl. ¶5. This is based on the reasonable rate charged for similar specialized attorneys in the Los Angeles Area and the court’s previous decision in Case No. BC576587, United Walnut Taxpayers v. Mt. San Antonio Community College District (“United Walnut”). Sherman Decl. ¶5; see McClendon Decl.
Sherman also opines that $175 is a common and reasonable rate and value for the experienced seven-year law school graduate law clerk that he exclusively used for this matter, Jeffrey Anson (“Anson”), and for his paralegal, Paul Best (“Best”). Sherman Decl. ¶¶ 6-9, Ex. 1.
Beginning in August of 2014, Sherman represented the Boppanas in a lawsuit filed by Nolan alleging claims of trespass and nuisance (“Nolan lawsuit”). Sherman Decl. ¶12; Boppana Decl. ¶¶ 4-5. The Boppanas responded by filing a cross-complaint. Sherman Decl. ¶12; Boppana Decl. ¶6. During the pendency of that litigation, Sherman took the deposition of Nolan on November 12, 2015 in which Nolan testified that he had obtained a Revocable Permit from City’s Bureau of Engineering (“BOE”) purporting to authorize the construction, maintenance, and use of multiple structures that Nolan had built in his front and side yards. Sherman Decl. ¶12; Boppana Decl. ¶6.
As a result, Sherman investigated and obtained information from City and Nolan about what permits he had been applied for and granted. Sherman Decl. ¶13; Boppana Decl. ¶8. When City and Nolan refused to provide documents or information, the Boppanas were forced to file the underlying lawsuit on December 1, 2015 to avoid expiration of any statute of limitations, and to compel City to follow the law regarding the standards and procedures for Revocable Permits. Sherman Decl. ¶13; Boppana Decl. ¶9.
In this second lawsuit, Sherman agreed to represent the Boppanas at substantially reduced hourly rates: $200 per hour for his work, $85 per hour for law clerk services, and $75 an hour for paralegal services, all with an understanding that he would obtain his full attorney’s fees if and when the Boppanas prevailed and obtained a private attorney general fee award. Sherman Decl. ¶13; Boppana Decl. ¶¶ 10-11. The Boppanas have spent $88,500 for Sherman’s attorney fees in pursuing the instant lawsuit. Boppana Decl. ¶10.
The Boppanas’ initial December filing also included claims related to other after-the-fact illegal development and grading permits obtained from City by Nolan, but those permit claims were excised and dismissed from this case and are now submitted for judicial review in a separate Boppana lawsuit pending in the Superior Court. Sherman Decl. ¶14.
On June 17, 2016, the Boppanas filed the operative FAP as a writ claim challenging the subject R-Permit after Nolan demurred and Sherman’s office confirmed there were no administrative remedies to exhaust with the BOE regarding challenging the irregular issuance of the subject R-Permit issuance. Sherman Decl. ¶15.
The court issued a ruling on April 20, 2017 which rejected City and Nolan’s affirmative defenses of standing, equitable estoppel and laches, and further rejecting the City and Nolan’s arguments that the Permit Manual was an unenforceable guide. Sherman Decl. ¶16. However, the court ruled against the Boppanas by finding that City’s issuance of the R-Permit did not rise to an abuse of discretion or violation of law. Sherman Decl. ¶16.
The Boppanas timely filed an appeal. Sherman Decl. ¶17. After the March 19, 2019 appellate decision overturning the judgment denying the Boppanas’ petition, Sherman’s office spent months addressing Real Party Nolan’s objections to a proposed judgment and writ that included the scope of the court of appeal’s decision and obtaining a final judgment and writ from this court. Sherman Decl. ¶18.
All legal services conducted for the Boppanas in this mandamus case were performed by Sherman’s office. Sherman Decl. ¶19. Sherman contracted with a seven-year law clerk and 15-year paralegal who worked under his direct supervision. Sherman Decl. ¶19. Sherman and his staff each maintained contemporaneous time records of tasks and times that they performed. These tasks include the general course of the lawsuit, the appeal, and post-appeal matters including this instant fee motion. Sherman Decl. ¶20, Ex. 3.
The lodestar calculation for time spent by Sherman’s office from November 11, 2015 through November 15, 2019 totals $257,062.50. Sherman Decl. ¶21, Ex. 3. This includes 303.7 hours for Sherman’s services at $650 per hour, a total of $197,405, 234 hours at $175 per hour for Anson’s work, a total of $40,950, and 106.9 hours at $175 per hour for Best’s work, a total of $18,707.50. Sherman Decl. ¶21, Ex. 3.
The Boppanas claim an additional attorney’s fee of $5,212.50 for the anticipated collective time for Sherman’s office to prepare reply brief on this fee motion, and to prepare for and appear at the fee motion hearing. Sherman Decl. ¶22. The additional fee motion total includes six hours at $650 per hour for Sherman’s services, a total of $2,275, six hours at $175 per hour for Anson’s services, a total of $1,050, and 1.5 hours at $175 per hour for Best’s work, a total of $262.50. Sherman Decl. ¶22.
Sherman’s time and billing records represent the time and task involvement incurred and necessary for the instant lawsuit and appeal, and do not include any severable time spent on Nolan’s civil lawsuit, Nolan v. Boppana, Case No. BC554633 or the administrative appeals separately pursued and filed as a lawsuit in Boppana v. City, Case No. BS 172743. Sherman Decl. ¶23. Sherman has separate client retainer agreements and maintains separate billing records and invoices for those cases and has also reviewed his 21 billing statements to eliminate any time and tasks directly attributable to either lawsuit. Sherman Decl. ¶23, Exs. 3, 4. The tasks conducted in each of the invoices indicate a direct connection to the legal services provided for the instant lawsuit and are only, or are substantially inseverable only with, legal services provided for the instant lawsuit. Sherman Decl. ¶23.
2. Respondent and Real Party’s Evidence
On October 14, 2014, the Boppanas filed their cross-complaint for damages in Nolan’s lawsuit. Lewis Decl. ¶2, Ex. 1. Petitioners’ cross-complaint alleged claims for nuisance, trespass, negligence, and invasion of privacy against Nolan, stating that their claims arose out of the same front yard area improvements that are the subject of the instant mandamus action, as well as other improvements constructed in the rear of Nolan’s property. Lewis Decl. Ex. 1.
On November 2, 2015, the Boppanas served verified responses to special interrogatories propounded by Nolan in which they stated that they had sustained at least $400,986.60 in compensatory damages for Nolan’s actions. Lewis Decl. ¶5, Ex. 4. Petitioners also stated that they were seeking $1 million in punitive damages for Nolan’s actions in illegally construction the front yard improvements. Lewis Decl. ¶5, Ex. 4. On November 10, 2015, Nolan took Rao Boppana’s deposition and he confirmed that he was seeking monetary damages in the amounts set forth in the Boppanas’ interrogatory responses. Lewis Decl. ¶6, Ex. 5.
Petitioners filed a notice of related cases, seeking to relate this mandamus case and Nolan’s lawsuit on the ground that the two cases involved the same parties and facts. Lewis Decl. ¶11, Ex. 10.
On December 8, 2015, Petitioners filed an ex parte application requesting a stay of Nolan’s lawsuit until the instant mandamus action was resolved, which was granted. Lewis Decl. ¶¶ 7-8, Exs. 6-7.
Nolan demurred to Petitioners’ mandamus petition, and on May 17, 2016 the court sustained the demurrer without leave to amend on all claims relating to the three permits issued by the City for Nolan’s rear yard improvements based on Petitioners’ failure to exhaust their administrative remedies, and those claims subsequently were dismissed. Lewis Decl. ¶12, Ex. 11.
On January 23, 2017, Rao Boppana filed a declaration in the instant action confirming that the purpose of their cross-complaint in the Nolan lawsuit was to obtain civil money damages and injunctive relief against Nolan for his conduct in building the front yard improvements, and the instant mandamus action was directed towards the City’s actions in granting the R-Permit for these same improvements. Lewis Decl. ¶13, Ex. 12, ¶14. On April 3, 2017, Rao Boppana filed a supplemental declaration again stating that his purpose in bringing the mandamus action was directly related to his claims in the stayed Nolan lawsuit and, in particular, his perception that the improvements blocked sight lines from his driveway. Lewis Decl. ¶14, Ex. 13.
On April 28, 2017, before filing an appeal, Petitioners filed another Status Conference Report in the stayed Nolan lawsuit. Lewis Decl. ¶9, Ex. 8. Petitioners requested that the stay continue in place while they determined if they were going to appeal the trial court’s denial. Lewis Decl. ¶9, Ex. 8.
Petitioners subsequently appealed this case, and prevailed. On June 12, 2019, the Supreme Court denied Petitioners’ request for publication of the appeal decision. Lewis Decl. ¶15, Ex. 14.
On June 25, 2019, Petitioners filed another Status Report in the Nolan lawsuit, stating that the matter could now be tried to determine damages and remedies as a result of the court of appeal’s decision in the mandamus action. Lewis Decl. ¶10, Ex. 9.
3. Reply Evidence
In reviewing the relevant billing records and timesheets for the matter, Sherman inadvertently missed a 1.4 hour entry for June 23, 2016 that is unrelated to the instant action and should be deducted. Sherman Reply Decl. ¶4.
Sherman’s billing statement starts on November 11, 2015 because that is when Petitioners began investigating about the Revocable Permit. Sherman Reply Decl. ¶4. Those initial entries refer to Nolan as “cross-defendant” because they are contemporaneous entries. Sherman Reply Decl. ¶4. Between November 11, 2015 and December 1, 2015, Sherman and his staff investigated the Revocable Permit, including records requests, correspondence, and drafting the initial petition filed in the instant lawsuit. Sherman Reply Decl. ¶4.
Between December 1, 2015 and February 26, 2016, Sherman’s office performed many tasks necessary to this litigation, including reviewing City’s answer, legal and procedural issues regarding Nolan’s first demurrer. Sherman Reply Decl. ¶5.
Between April 24, 2016 and June 10, 2016, Sherman’s drafted and finalized an opposition to Nolan’s amended demurrer, engaged in correspondence with both City and Nolan’s counsel, and argued the demurrer at hearing. Sherman Reply Decl. ¶6. Sherman spent time spent in late February through May of 2016, as demanded by Respondents’ demurrer, to research and argue a response. Sherman Reply Decl. ¶6. During May through June 14, 2016, Sherman also spent time trying to exhaust remedies with the Department of Public Works regarding the Revocable Permit issued on November 15, 2015. Sherman Reply Decl. ¶6, Ex. A.
On June 10, 2016, Sherman’s office began drafting the FAP. Sherman Reply Decl. ¶7. The original Petition and the FAP both challenge the Revocable Permit. Sherman Reply Decl. ¶8. Had Sherman not filed the Petition, this litigation would have never occurred. Sherman Reply Decl. ¶8. Had Sherman not filed an opposition to Nolan’s amended demurrer and successfully argued the motion before the court, the entire case would have been dismissed with prejudice. Sherman Reply Decl. ¶8. Each of the tasks by Sherman and his office were essential to the success in litigation. Sherman Reply Decl. ¶8.
The Boppanas’ decision to seek publication of the appeal decision was based upon the citywide importance of the decision in meeting publication factors. Sherman Reply Decl. ¶9. Sherman believes the request, although denied, was reasonably made and justified the expenditure of his 2.2 hours and his law clerk’s 1.2 hours making a request for publication. Sherman Reply Decl. ¶9.
Nolan filed a new application either before or on the same date as the court’s October 7, 2019 issuance of the writ in the instant action. Sherman Reply Decl. ¶19. At the October 7, 2019 hearing, City’s counsel requested 60 days to revoke the permit and file a return to the writ. Sherman Reply Decl. ¶20. Instead, City wrote a revocation letter on October 8, 2019, but did not advise the parties or the court until it filed a return to the writ on December 2, 2019. Sherman Reply Decl. ¶20, Ex. F.
It is irrelevant whether the instant action is a neighbor dispute because a member of the public is authorized to require the City to correctly interpret and implement the law. Sherman Reply Decl. ¶21, Ex. G.
Petitioners seek attorneys’ fees of $257,062.50, as well as fees for the instant motion of $5,212.50. Sherman Decl. ¶¶ 21-22, Ex. 3. The City and Nolan (collectively, “the City”) oppose.
1. Successful Party
Courts take a “broad, pragmatic view of what constitutes a ‘successful party’” to effectuate the policy underlying section 1021.5. Graham v. DaimlerChrysler Corp. supra, 34 Cal.4th at 565. The party seeking attorney’s fees need not prevail on all alleged claims to qualify for an award. Harbor v. Deukmejian, supra, 43 Cal.3d at 1103. A party is successful under section 1021.5 if the party succeeds on “any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Maria P., supra, 43 Cal.3d at 1292.
The Boppanas assert that they are a successful party under section 1021.5. They argue that they achieved all their litigation objectives and caused the issuance of a writ of mandamus to rescind the disputed subject R-Permit. They also obtained substantial success in a correction of law and interpretation whereby City is required to follow zoning, building, local plans, and its own Permit Manual in the issuance of all revocable permits as decided in the appellate opinion. Mot. at 10.
The City does not dispute that the Boppanas are the successful party in this litigation.
2. Important Right Affecting the Public Interest
Generally, “a right need not be constitutional in nature to justify the application of the private attorney general doctrine.” Woodland Hills, supra, 23 Cal.3d at 935. Nor must the important right be confined to a particular area of law. Ibid. At the same time, the public always has a significant interest in seeing that laws are enforced and always derives some benefit when illegal private or public conduct is rectified. Flannery, supra, 61 Cal.App.4th at 635. The Legislature did not intend to authorize an award of fees under section 1021.5 in every lawsuit enforcing a constitutional or statutory right. Ibid. The court should realistically assess the significance of the right in relationship to the achievement of fundamental legislative goals. Woodland Hills, supra, 23 Cal.3d at 936; see also Robinson v. City of Chowchilla, (2011) 202 Cal.App.4th 382, 394.
Petitioners argue that they enforced an important right affecting the public interest by ensuring that City administrators must adhere to its local zoning and building codes, which have been adopted for the protection and benefit of its citizens for orderly development and quality of life. Mot. at 11. Petitioners note that California courts have repeatedly determined that zoning and development controls are enacted for the public benefit. HFH, Ltd. v. Superior Court of L.A. County, (1975) 15 Cal.3d 508, 526.
The City do not directly address this issue. See Opp. at 6.
Petitioners overstate the scope of the right they enforced. Petitioners’ litigation did not broadly implicate the City’s zoning and development laws, but rather addressed a whether the BOE must consider the City’s zoning code, building code, and applicable specific plan before issuing a R-Permit for structures that encroach on the public right-of-way. Ex. 2, pp. 13-14. The appellate court held that BOE had a mandatory, ministerial duty to consider all three before issuing an R-Permit for a structure encroaching on the public right-of-way. Ex. 2, p.22.
There is no reason to believe that the right for the city to consider building and zoning laws in issuing an R-Permit is an important one affecting the public interest. While it is true that zoning and development ordinances are enacted for the public benefit, this does not necessarily mean that Petitioners’ success implicates an important public right. The public always derives some benefit when illegal public conduct is rectified. Flannery, supra, 61 Cal.App.4th at 635. Petitioners present no evidence on the City’s frequency of R-permit issuance, how many structures in the City encroach on the public right-of-way, or any other evidence which would show the importance of this right or how the City’s consideration of zoning and building code issues affects the public interest.
Petitioners have not demonstrated that they enforced an important right affecting the public interest.
3. Significant Benefit Conferred on the Public or a Large Class of Persons
The significant benefit necessary for a section 1021.5 fee award need not represent a concrete gain. In some cases, a significant benefit may be recognized simply from the effectuation of a fundamental constitutional or statutory policy. Woodland Hills, supra, 23 Cal.3d at 939. Moreover, the extent of the public benefit need not be great to justify an attorney’s fee award. See, e.g., Protect Our Water v. County of Merced, supra, 130 Cal.App.4th at 496 (significant public benefit where litigation prompted agency to improve methods of creating and managing its CEQA records). The trial court determines “the significance of the benefit, as well as the size of the class receiving benefit, from a realistic assessment, in light of all the pertinent circumstances, of the gains which have resulted in a particular case.” Woodland Hills, supra, 23 Cal.3d at 939–40.
The section 1021.5 factors are interrelated; the more fundamental and important the right vindicated, the lower the showing required for the element that a large class of persons benefit. See Press v. Lucky Stores, Inc., (“Press”) (1983) 34 Cal.3d 311, 319. The converse is also true. The less fundamental and important the right vindicated, the higher the showing required for a significant benefit to a large class of persons. That is the case here. The public’s right for the City to follow its own zoning and building laws in issuing R-Permits is not a fundamental right, and Petitioners are therefore required to make a higher showing of a significant benefit to a large class of persons. See Press, supra, 34 Cal.3d at 319.
Petitioners assert that their success ensures that the City must follow zoning law, building code, and land use plans when considering whether to issue R-permits. As a result, it benefits all City residents. Mot. at 12.
The City notes that, despite the Boppanas’ effort, the California Supreme Court declined to publish the appellate decision. The City suggests that this fact precludes any possibility of a significant public benefit. Opp. at 6, 14.
The Boppanas are correct that this is an overstatement. Reply at 5-6. While publication of an appellate decision aids in showing a significant benefit for a large class of person, the fact of publication or non-publication is not dispositive. The City acknowledges as much in stating that Petitioners fail to show that the appellate decision “created any new procedures or policies”. Opp. at 14. Thus, the fact that the appellate court decision was not published is only a factor to support a conclusion that a significant benefit was not conferred on a large class of persons.
However, there is no other evidence supporting a conclusion that the City’s compelled compliance with its own zoning laws and building code in issuing R-Permits conferred a significant benefit on the public or a large class of persons.
This case is a dispute between neighbors over what the City describes as “just a small gate and a fence on a small publicly owned parcel in front of Nolan’s house. Opp. at 15. Petitioners do not dispute this characterization. As a result of the appellate decision, Nolan’s R-Permit was revoked and the BOE must consider the City’s zoning law and building code for re-issuing the R-Permit. The decision aids the Boppanas in their cross-complaint for damages in the Nolan lawsuit. See post. But Petitioners fail to show a significant benefit conferred on anyone else. There is no evidence of how many neighbors live on the bluff near this property, their position on the R-Permit, or how they are impacted by the appellate ruling. There further is no evidence how the appellate decision affects other residents of the City.
Even the benefit obtained by the Boppanas may not be permanent. As the City correctly notes (Opp. at 14), the appellate court never determined that Nolan did not have the right to install the front yard improvements. Nor did it decide that the City lacked authority to grant an R-Permit to Nolan. The court simply held that the City must consider other laws before granting approval. Petitioners have not conferred a significant public benefit on a larger class of persons because they have achieved only modest and limited relief that benefits mostly themselves. See Pacific Legal Foundation v. California Coastal Commission, (1982) 33 Cal.3d 158 (no significant benefit for public or large class where beachfront property owner/developer obtained judgment invalidating condition of development for beach access that was not supported by substantial evidence).
Petitioners rely on Starbird v. County of San Benito, (“Starbird”) (1981) (122 Cal.App.3d 657. Starbird involved San Benito County’s issuance of a conditional use permit (“CUP”) for manufacturing on a property abutting a designated scenic highway without first requiring an EIR. The permit was issued over the protest of many county residents and against the advice of the county’s counsel. The protestors appealed the permit, and the appellate court found that an EIR was required and that section 1021.5 fees were recoverable. Id. at 650, 662.
As the City correctly notes (Opp. at 15), Starbird is distinguishable because the large manufacturing plant was located on a designated scenic highway which would be seen by a large class of persons and a large number of persons protested the lack of an EIR. In contrast, the City’s compliance with the requirements for issuing R-permit affects only Nolan, the Boppanas, and potentially other neighbors.
Petitioners’ success in this litigation did not confer a significant benefit on the public or a large class of persons.
4. Necessity and Financial Burden of Private Enforcement
“The necessity of private enforcement looks to the adequacy of public enforcement and seeks economic equalization of representation in cases where private enforcement is necessary.” In re Conservatorship of Whitley, (“Whitley”) (2010) 50 Cal.4th 1206, 1214-15 (internal quotations omitted) (quoting Lyons v. Chinese Hosp. Assn. (2006) 136 Cal.App.4th 1331, 1348). In determining the financial burden on the petitioner, courts have 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.” Whitley, supra, 50 Cal.4th at 1215. This prong evaluates “incentives rather than outcomes.” See id. at 1220. The party seeking attorneys’ fees must show that the necessity for pursuing the lawsuit placed a burden on the plaintiff “out of proportion to his individual stake in the matter.” Woodland Hills, supra, 23 Cal. 3d at 941.
This prong encompasses two issues: (1) whether private enforcement was necessary and (2) whether the financial burden of private enforcement warrants subsidizing the successful party’s attorneys. Lyons v. Chinese Hospital Assn., (“Lyons”) (2006) 136 Cal.App.4th 1331, 1348. The necessity of private enforcement becomes clear when the action proceeds against only the governmental agencies that bear responsibility for the alleged violations. Id.; see Woodland Hills, supra, 23 Cal.3d at 941. The financial burden of private enforcement is met when the cost of the claimant’s legal victory transcends his personal interest. Woodland Hills, supra, 23 Cal.3d at 941.
The City does not contest that private enforcement by the Boppanas was necessary. Petitioners argue that they fulfill the financial burden factor because they achieved no monetary recovery in the instant mandamus case. Mot. at 12.
Petitioners crop the photograph too closely. Petitioners did not recover any money in this mandamus case, but this lawsuit part of a bigger picture. As the City notes (Opp. at 16-17), the focus of financial burden of private enforcement is not only on the costs of litigation, but also any offsetting financial benefits that the litigation yields or reasonably could have been expected to yield. Whitley, supra, 50 Cal.4th at 1215. Petitioners’ victory in this case aids their potential recovery on their cross-complaint in the Nolan lawsuit where they claim at least $400,986.60 in compensatory damages and $1 million in punitive damages. The Boppanas can argue collateral estoppel in the Nolan lawsuit on issues of the R-permit’s illegality, which will aid them in obtaining compensatory and punitive damages. Such damages would far exceed the $88,500 in attorney’s fees incurred by the Boppanas in this mandamus litigation. See Millview County Water District v. State Water Resources Control Board, (2016) 4 Cal.App.5th 759, 764 (mandamus proceeding affected petitioner’s payment for purchase of water rights from other parties, undermining the financial burden of private enforcement prong for section 1021.5 fees).
Petitioners argue that any recovery by them in the Nolan lawsuit is not relevant to their section 1021.5 motion in this case. They point out that the Whitley court referred to offsetting financial benefits that the litigation yields or reasonably could have been expected to yield. 50 Cal.4th at 1215. Reply at 9.
Whitley did refer to financial benefits resulting from the litigation, but it also referred to financial benefits that “reasonably could have been expected to [result from the litigation]”. In another case, the court might ignore a related lawsuit in addressing a section 1021.5 attorney’s fees motion. But in this dispute between neighbors, the two cases are intertwined. The Boppanas needed the outcome of this lawsuit to support their cross-complaint in the Nolan lawsuit. The anticipated damages award from that cross-complaint was not speculative to the Boppanas when they pursued this case; they subjectively believed that they will recover at least their $400,000 in damages from Nolan. Hence, the Boppanas reasonably expected this lawsuit to result in financial benefits in the Nolan lawsuit. Petitioners have not shown that the financial burden of private enforcement placed a burden on them “out of proportion to [their] individual stake in the matter.” Woodland Hills, supra, 23 Cal. 3d at 941.
Petitioners have shown the necessity, but not the financial burden, of private enforcement.
Petitioners’ motion for section 1021.5 attorneys’ fees is denied.
 Petitioners rely on the fact that this court denied the request to relate Nolan’s lawsuit to the instant action. Reply at 9, n.3. The court refused to relate the two cases because it is assigned mandamus cases and not damages lawsuits, which are assigned to independent calendar courts.