On 07/08/2016 WASTE MANAGEMENT COLLECTION RECYCLING INC filed an Other - Writ Of Mandamus lawsuit against CITY OF IRWIN. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
WASTE MANAGEMENT OF SAN GABRIEL/POMONA
WASTE MANAGEMENT COLLECTION AND RECYCLING
IRWINDALE CITY OF
IRWINDALE SUCCESSOR AGENCY OVERSIGHT BOA-
CITY OF IRWINDALE SUCCESSOR AGENCY
IRWINDALE COMMUNITY REDEVELOPMENT AGENCY
DOES 1 THROUGH 10
ROES 1 THROUGH 10
CITY OF IRWINDALE CITY COUNCIL
ARAKELIAN ENTERPRISES INC.
ATHENS SERVICES DBA OF ARAKELIAN ENTERPRISES
ARAKELIAN ENTERPRISES INC. DBA ATHENS SERVICES
REMY MOORE MANLEY LLP
REMY MOOSE MANLEY LLP
LEISY ANDREA KRISTEN
ALESHIRE & WYNDER LLP
MALAWY JEFFREY MICHAEL
OSAKI KELI NICOLE
BURT CHRISTOPHER S
1/30/2018: Minute Order
2/9/2018: NOTICE OF AND REQUEST FOR CEQA HEARING PURSUANT TO PUBLIC RESOURCES CODE SECTION 21167.4
5/1/2018: NOTICE OF RULING ON NOTICE OF RELATED CASE
5/1/2018: Minute Order
6/7/2018: NOTICE OF ORDER RE BRIEFING SCHEDULE
5/20/2019: Notice of Lodging
7/8/2016: VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR INJUNCTIVE RELIEF
7/25/2016: NOTICE OF RELATED CASE
8/2/2016: NOTICE OF TRIAL SEEPING CONFERENCE & ATTACHED ORDERS THEREON
8/5/2016: PROOF OF SERVICE OF SUMMONS
1/30/2017: Minute Order
1/30/2017: STIPULATION TO (1) FURTHER STAY CASES UNTIL JUNE 26, 2017, AND (2) CONTINUE TRIAL SETTING CONFERENCE; ORDER THEREON
11/30/2017: NOTICE OF RELATED CASE
12/13/2017: NOTICE OF COURT'S MINUTE ORDER RE NOTICE OF RELATED CASES
at 1:06 PM in Department 82; Non-Appearance Case ReviewRead MoreRead Less
Minute Order ( (NON-APPEARANCE CASE REVIEW)); Filed by ClerkRead MoreRead Less
Notice Re: Continuance of Hearing and Order; Filed by ClerkRead MoreRead Less
Notice of Lodging (of Trial Notebook); Filed by Waste Management Collection and Recycling (Petitioner); Waste Management of San Gabriel/Pomona (Petitioner)Read MoreRead Less
Notice of Lodging (of Joint Appendix); Filed by Waste Management Collection and Recycling (Petitioner); Waste Management of San Gabriel/Pomona (Petitioner)Read MoreRead Less
Notice (RESPONDENTS? AND REAL PARTY IN INTEREST?S NOTICE OF ERRATA; DECLARATION OF JILL ADAIR IN SUPPORT THEREOF); Filed by Athens Services dba of Arakelian Enterprises (Real Party in Interest)Read MoreRead Less
Opposition (RESPONDENTS? AND REAL PARTY IN INTEREST?S JOINT OPPOSITION TO PETITIONERS? OPENING BRIEFS); Filed by Athens Services dba of Arakelian Enterprises (Real Party in Interest)Read MoreRead Less
Objection (RESPONDENTS? AND REAL PARTY IN INTEREST?S OBJECTIONS TO WASTE MANAGEMENT?S REQUEST FOR JUDICIAL NOTICE); Filed by Athens Services dba of Arakelian Enterprises (Real Party in Interest)Read MoreRead Less
Request for Judicial Notice; Filed by Athens Services dba of Arakelian Enterprises (Real Party in Interest)Read MoreRead Less
Proof of Service by Mail; Filed by City of Irwindale City Council (Respondent)Read MoreRead Less
Notice of Trial Setting Conference and Attached Orders Thereon; Filed by ClerkRead MoreRead Less
at 08:30 AM in Department 1; Court Order - HeldRead MoreRead Less
Minute OrderRead MoreRead Less
Minute order entered: 2016-07-29 00:00:00; Filed by ClerkRead MoreRead Less
NOTICE OF RELATED CASERead MoreRead Less
NOTICE TO ATTORNEY GENERAL IPUBLIC RESOURCES CODE 21167.7 AND CODE OF CIVIL PROCEDURE 3881Read MoreRead Less
SUMMONSRead MoreRead Less
Petition; Filed by nullRead MoreRead Less
NOTICE OF ELECTION TO PREPARE RECORD OF PROCEEDINGSRead MoreRead Less
VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR INJUNCTIVE RELIEFRead MoreRead Less
Case Number: BS163450 Hearing Date: August 20, 2020 Dept: 82
Waste Management Collection and Recycling, Inc., dba Waste Management of San Gabriel/Pomona Valley,
v. City of Irwindale, et al., Respondents
Arakelian Enterprises, Inc. dba Athens Services, Real Party in Interest
[Consolidated with BS171509]
[Related to BS163400 and BS171622]
Judge Mary Strobel
Hearing: August 20, 2020
Tentative Decision on Motion for Attorney’s Fees: DENIED
Petitioner Waste Management Collection and Recycling, Inc. (“WMCRI” or “Petitioner”) moves for an award of attorney’s fees pursuant to CCP section 1021.5 against Respondent City of Irwindale (“Irwindale”) and Real Party in Interest Arakelian Enterprises, Inc. dba Athens Services (“Athens”) (collectively “Respondents”) in the total amount of $615,745.
Requests for Judicial Notice
WMCRI’s RJN Exhibit 1 – Granted. (Evid. Code § 452(d), (h).)
Respondents’ RJN Exhibit 1 – Denied. (Evid. Code § 452(b), (h).)
Respondents’ Evidentiary Objections and Motion to Strike Portions of the Declarations of Andrea Leisy and Cheryl Lautman
Declaration of Andrea Leisy
Declaration of Cheryl Lautman
(1) Overruled. .
(5) Sustained. Lacks foundation and personal knowledge. Improper opinion and legal conclusion
Respondents’ Evidentiary Objections and Motion to Strike Portions of the Supplemental Declaration of Cheryl Lautman and the Declaration of Doug Corcoran
Supplemental Declaration of Cheryl Lautman
Declaration of Doug Corcoran
(1) Sustained. As phrased (“on information and belief”), insufficient showing of personal knowledge and foundation. Speculation
On July 8, 2016, WMCRI filed its verified petition for writ of mandate and complaint for injunctive relief in BS163450, challenging Irwindale’s June 2016 actions. On November 15, 2017, WMCRI filed its verified petition for writ of mandate in BS171509 challenging Irwindale’s October 2017 actions. BS163450 and BS171509 have been consolidated.
On July 11, 2016, Baldwin Park, in a separate action, filed its verified petition for writ of mandate and complaint for declaratory and injunctive relief in BS163400, challenging Irwindale’s June 2016 approval of the DDA and EIR. On November 15, 2017, Baldwin Park filed its verified petition for writ of mandate in BS171622 challenging Irwindale’s October 2017 approval of the land use approvals and EIR Addendum. BS163400 and BS171622 have been consolidated.
All four cases have been related.
The court received Baldwin Park’s opening brief, WMCRI’s opening brief, Respondents’ joint opposition, Baldwin Park’s reply, WMCRI’s reply, the joint appendix, and the administrative records.
The court held the first hearing on the merits on July 16, 2019. The court held a second hearing on the merits on August 22, 2019.
On September 5, 2019, the court issued its final statement of decision (hereafter “Decision”). The Decision provides a detailed discussion, which is not repeated here, of the Factual and Procedural Background related to the Project, Irwindale’s environmental review and land use approvals, and the court’s analysis of Petitioners’ CEQA and non-CEQA claims.
Petitioners submitted a proposed judgment, which Respondents opposed. On October 17, 2019, the court held a hearing on the Proposed Judgment and overruled Respondents’ objections. The court then entered Judgment in Petitioners’ favor, finding: “the EIR’s project description and analysis is inadequate as to truck fueling operations, the EIR does not sufficiently analyze transportation energy impacts, the EIR does not sufficiently analyze the health risks associated with the Project’s emissions of ROG, NOx and ozone, or explain why this analysis would be infeasible, and the EIR does not sufficiently analyze greenhouse gas emissions (‘GHG’) or the effectiveness of AQ-22 in reducing GHG emissions to less than significant….” Only the last of these findings, regarding the analysis of GHG emissions and the effectiveness of AQ-22, were based on legal briefing of WMCRI. The other findings were based on legal briefing of Baldwin Park, as discussed in the court’s ruling on the fee motion in that case. In its writ briefs, WMCRI made numerous other challenges under CEQA, which were rejected by the court. (See Court’s Decision.)
On October 21, 2019, the court issued a Peremptory Writ of Mandate, ordering Irwindale to set aside, among other things, the FEIR, the Addendum, the DDA and the Land Use Approvals, and to take all steps necessary to bring the EIR into compliance with CEQA. Irwindale filed its Returns to the Writ of Mandate in December 2019 and January 2020, confirming that it had vacated the certification of the FEIR and the other Project approvals.
On January 27, 2020, WMCRI filed its motion for attorney’s fees. The court has received Respondents’ opposition and WMCRI’s reply.
The parties cite to parts of the administrative record in the motions for fees, the oppositions, and the replies. The court had returned the administrative record to the parties after the writ petitions were decided. Accordingly, on August 18, 2020, at the request of the court, the parties lodged by email a “Dropbox” link to administrative record pages cited in the parties’ fee motions, oppositions, and replies.
An award of attorney fees is appropriate “to a successful party … in any action which has resulted in the enforcement of an important right affecting the public interest.” (CCP § 1021.5.) The three factors necessary to support an award of attorney fees to a successful party pursuant to section 1021.5 are: “(1) [the] action has resulted in the enforcement of an important right affecting the public interest,’ (2) a significant benefit, whether pecuniary or nonpecuniary has been conferred on the general public or a large class of persons and (3) the necessity and financial burden of private enforcement are such as to make the award appropriate.” (In re Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1214.)
“When it comes to section 1021.5, the successful party is ‘the party to litigation that achieves its objectives.’” (La Mirada Avenue Neighborhood Assn. of Hollywood v. City of Los Angeles (2018) 22 Cal.App.5th 1149, 1157 [plaintiff was the “successful” party where the Court invalidated some, but not all, of the city’s approvals of a project].) “In assessing whether a party is a successful party, a ‘broad, pragmatic view’ is applied.” (County of Colusa v. California Wildlife Conservation Bd. (2006) 145 Cal.App.4th 637, 649.) WMCRI need only “succeed on any significant issue in litigation which achieves some of the benefit [it] sought in bringing suit.” (RiverWatch v. County of San Diego Dept. of Environmental Health (2009) 175 Cal.App.4th 768, 783.)
WMCRI is the “successful party” in this litigation because it achieved its primary objective — the Judgment overturns the certification of the FEIR, the approval of the DDA, the approval of the Addendum, and the Land Use Approvals. The Judgment also prevents Irwindale from proceeding with the Project until the required CEQA analysis has been completed.
Enforcement of Important Right Affecting the Public Interest
“The first prong of the section 1021.5 test … requires a determination of ‘the ‘strength’ or ‘societal importance’ of the right involved. That right may be constitutional or statutory, but it must be ‘an important right affecting the public interest’—it ‘cannot involve trivial or peripheral public policies.’ Where, as here, the right vindicated is conferred by statute, ‘courts should generally realistically assess the significance of that right in terms of its relationship to the achievement of fundamental legislative goals.’” (Roybal v. Governing Bd. of Salinas City Elementary School Dist. (2008) 159 Cal.App.4th 1143, 1148.)
Courts have recognized that lawsuits enforcing the policies and provisions of CEQA involve important rights affecting the public interest. (See e.g. Center for Biological Diversity v. County of San Bernardino (2010) 185 Cal.App.4th 866, 892-93 [lawsuit forcing county to consider alternative mitigation measures and reanalyze impacts furthered an important public right]; Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260, 291 [lawsuit compelling city to reconsider flaws in EIR enforced an important public interest].)
This action enforced important environmental and related statutory rights, policies, and legislative goals reflected in CEQA. These rights affect the public interest. Respondents make no argument to the contrary.
Necessity and Financial Burden of Private Enforcement
The necessity and financial burden requirement “‘examines two issues: whether private enforcement was necessary and whether the financial burden of private enforcement warrants subsidizing the successful party's attorneys.’” (Lyons v. Chinese Hosp. Ass'n (2006) 136 Cal.App.4th 1331, 1348.)
Here, “private enforcement” was “necessary” because Irwindale failed to ensure compliance with CEQA despite WMCRI’s and Baldwin Park’s objections. The Supreme Court has held that section 1021.5’s necessity prong is satisfied where, as here, a petitioner seeks to compel a public agency to comply with its legal duties. (See, e.g., Woodland Hills, supra, 23 Cal.3d at 941.) The Attorney General, moreover, declined to intervene in the action after being served by WMCRI, thereby rendering WMCRI’s lawsuit necessary. (Leisy Decl., ¶ 15; Schwartz v. City of Rosemead (1985) 155 Cal.App.3d 547, 561.) Respondents make no argument to the contrary.
With respect to financial burden, “[a]n award on the ‘private attorney general’ theory is appropriate when the cost of the claimant’s legal victory transcends his personal interest, that is, when the necessity for pursuing the lawsuit placed a burden on the plaintiff ‘out of proportion to his individual stake in the matter.’” (Woodland Hills Residents’ Ass’n, Inc. (1979) 23 Cal.3d 917, 941.) “An attorney fee award under section 1021.5 is proper unless the [successful litigant’s] reasonably expected financial benefits exceed by a substantial margin the [litigant’s] actual litigation costs.” (Collins v. City of Los Angeles (2012) 205 Cal.App.4th 140, 154.) “The successful litigant's reasonably expected financial benefits are determined by discounting the monetary value of the benefits that the successful litigant reasonably expected at the time the vital litigation decisions were made by the probability of success at that time.” (Id. at 155.)
A litigant’s nonpecuniary interests do not affect its eligibility for section 1021.5 fees. (In re Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1217.) However, “‘the absence of a monetary award, or of precise amounts attached to financial incentives, does not prevent a court from determining whether the plaintiff's financial burden in pursuing the lawsuit is out of proportion to his individual stake in the matter.’ [Citation.] No abuse in awarding fees can be found where the facts show ‘that the plaintiff's ‘future money advantage ... is speculative’ [citation], or that the plaintiff's' ‘pecuniary benefit will be indirect and uncertain.’” (Sweetwater Union High School Dist. v. Julian Union Elementary School Dist. (2019) 36 Cal.App.5th 970, 992; see also Galante Vineyards v. Monterey Peninsula Water Management Dist. (1997) 60 Cal.App.4th 1109, 1128.)
Significantly, “it is the party seeking private attorney general fees who ‘bears the burden of establishing that its litigation costs transcend its personal interest.’” (Norberg v. California Coastal Commission (2013) 221 Cal.App.4th 535, 545-56; see also Luck v. S. Pac. Trans. (1990) 218 Cal.App.3d 1, 30 [same].)
In the verified petition, WMCRI alleges that it “operates and provides MSW [municipal solid waste] collection and recycling services to businesses and residents of the City of Baldwin Park, among others, located immediately adjacent to the Project Site.” (Pet. ¶ 8.)
As discussed in the court’s Decision, the Project is a material recovery facility and transfer station (MRF/TS), and convenience store/fueling station. (AR 3452, 8049.) The Project will operate 24 hours per day, 7 days per week, and is expected to process up to a maximum of 6,000 tons of waste per day (“tpd”). (AR 3454, 3460.) Each day there will be approximately 2,456 truck trips, 345 employee trips, and 751 fueling station trips entering and exiting the site. (AR 3810.)
The Project Site abuts the City of Baldwin Park on its southern border. (AR 3448-50.) The Project Site is located within the South Coast Air Basin (“Basin”). “Basin climate increases the potential to create air pollution problems. Air quality within the Basin generally rates from fair to poor.” (AR 3536.)
WMCRI submits the declaration of Cheryl Lautman, a district manager at WMCRI’s San Gabriel hauling facility, located within 150 yards of the Project. (Lautman Decl. ¶¶ 3-4.) Lautman declares, in relevant part, as follows: “WMCRI is a corporation organized and existing under the laws of the State of California. WMCRI operates the San Gabriel Hauling facility located at 13940 E. Live Oak Avenue in the City of Baldwin Park. The San Gabriel Hauling facility has operated at this location for over 35 years, and has exclusive franchise contracts with five cities and contracts with other unincorporated areas.” (Id. ¶ 4.) “The San Gabriel Hauling Facility site includes: (i) a dispatch department, with approximately 50 people; (ii) a billing department, with approximately 10 people; and (iii) a collection district, with approximately 110 people.” (Id. ¶ 6 [emphasis added].) “WMCRI is one of the larger employers in the San Gabriel Valley.” (Id. ¶ 7.) “Passenger cars and trucks frequenting WMCRI's San Gabriel Hauling facility use the same roads and highways as would traffic and trucks frequenting the Athens TS/MRF….” (Id. ¶ 8.) “WMCRI employees, including those who work at the San Gabriel Hauling Facility, would be directly and indirectly affected by the traffic and air quality, including greenhouse gas (GHG), effects of the Athens TS/MRF project, including from trucks traveling along the shared roadways identified above.” (Id. ¶ 9; see also Suppl. Lautman Decl. ¶¶ 3-4.)
With the moving papers, WMCRI also submits a declaration of its attorney, Andrea Leisy. The court has ruled above on Respondents’ evidentiary objections to the parts of Leisy’s declaration relevant to the financial interest analysis. (See Leisy Decl. ¶ 16.)
In reply, WMCRI submits a declaration of Doug Corcoran, who has worked for WMCRI as an “officer” for the past 15 years and is “responsible for servicing the municipal franchise agreements and governmental contracts in Southern California for WMCRI.” (Corcoran Decl. ¶ 3.) Among other things, Corcoran declares: “The San Gabriel Valley benefits from an existing developed transfer station/ recycling infrastructure system, including various existing MRF/TS facilities owned and operated by Athens, Valley Vista (which has 2), LACSD’s Puente Hills TS/MRF and Azusa Land Reclamation, Inc. (‘ALRI’), among others, which provides sufficient processing and transfer capacity.” (Id. ¶ 6.) “In 2013, the Azusa MRF/TS was constructed in part due to the anticipated closure of the Puente Hills landfill. WMCRI has used the Azusa MRF/TS, as well as the Puente Hills MRF and Valley Vista's two transfer stations, to service the pre-existing WMCRI franchise agreements.” (Id. ¶ 10.)
In opposition, Respondents submit the declaration of William Vaughn, an executive vice president of Real Party in Interest Arakelian Enterprises, Inc. dba Athens Services (“Athens”). Vaughn has substantial managerial experience in the waste and recycling industry. (Vaughn Decl. ¶ 2.) Because his declaration is important to the court’s analysis, the court quotes certain parts in full:
“Athens is a local, family-owned waste collection and recycling company that has been a fixture in the greater Los Angeles community for the past 60 years. Athens provides innovative, consistent and quality environmental services to its more than 250,000 customers in the 50 plus communities it serves. Through reuse, recycling and composting, Athens diverts valuable resources from landfills.” (Id. ¶ 3.)
“I have reviewed paragraph 16 of the Declaration of Andrea K. Leisy, who I understand is counsel for Petitioner Waste Management Collection and Recycling, Inc., dba Waste Management of San Gabriel/Pomona Valley (‘WMCRI’), wherein she asserts that, ‘Operations at the WMCRI hauling facility do not fiscally compete, directly or indirectly, with the proposed Project.’ That assertion is incorrect. Once constructed, Athens’ proposed Materials Recovery Facility and Transfer Station (the ‘Project’) will compete with not only WMCRI's hauling facility, but also other Waste Management facilities in the surrounding areas and beyond, including, without limitation, the Azusa Materials Recovery Facility and Transfer Station (‘WM Azusa’), which is an anchor facility for Waste Management's entire collections operations in the San Gabriel Valley, and the Azusa Land Reclamation, all of which are within approximately 1-3 miles of one another.” (Id. ¶ 5.)
“The Project and WM Azusa will be a mere 2.3 miles away from one another, and will provide similar services. For instance, both the Project and WM Azusa are enclosed Materials Recovery Facilities and Transfer Stations that will service the same communities, and thus compete to provide those services to various consumers. WM Azusa and the Project will be in direct competition for MRF processing and disposal services for all cities in the San Gabriel Valley and along the 210 Foothill Corridor.” (Id. ¶ 6.)
“Ms. Leisy also contends in paragraph 16 of her declaration that WM Azusa, ‘receives its material from sources other than Irwindale and Athens and, therefore, is not, and would not be, directly fiscally affected by the Project.’ That contention is also inaccurate. Whether WM Azusa receives its material from sources other than Irwindale and Athens does not mean that the Project, on the one hand, and the various Waste Management facilities identified herein on the other, do not compete against one another. They do, as already discussed.” (Id. ¶ 7.)
Relevant Evidence from the Administrative Record Regarding Financial Interest of WMCRI and Waste Management, Inc.
In May 2005, both Athens and Waste Management, Inc. (“WM”) were being considered as the applicant for the Project. (AR 8474.) Both Athens and WM went through a rigorous, competitive application process for the Project, and Athens was ultimately selected as the Project applicant. (Id. at 8485-86; 101.)
On October 9, 2014, WMCRI’s counsel, Remy Moose Manley, LLP, submitted a letter to Irwindale on behalf of Azusa Land Reclamation, Inc. and USA Waste of California, Inc., regarding the sale of 2200 Arrow Highway to Athens as part of the Project. The letter collectively referred to Azusa Land Reclamation, Inc. and USA Waste of California, Inc. as “WM” (presumably, short for “Waste Management.”) The letter asserted, inter alia, that Irwindale “appears to be undervaluing the property” by approximately $1,000,000 “for the sole benefit of Athens.” (AR 11227-246.) In June 2016, WMCRI, also represented by Remy Moose Manley, submitted a similar letter to Irwindale asserting that the sale of the Project Site to Athens was illegal or improper because it undervalued the property by about $3 to $4 million. (AR 11271-274.) This June 2016 letter asserted that if Irwindale sold the Project Site to Athens for the proposed price, it would provide an improper subsidy to a private company (Athens) “whose annual revenue is estimated between $500 million and $1 billion.” (Ibid.)
Apparently, Irwindale responded to the October 9, 2014 letter of Azusa Land Reclamation, Inc. and USA Waste of California, Inc. and rejected the assertions about the price of Athens’ proposed purchase of the Project Site. Irwindale apparently referred to Remy Moose Manley LLP” as “legal counsel for Waste Management, a competitor to the proposed purchaser of the Site, Athens Services.” (See Oppo. 13-14, citing AR 204.)
In 2017, Remy Moose Manley also submitted letters on behalf of WMCRI and, separately, Azusa Land Reclamation, Inc. and USA Waste of California, Inc. with respect to alleged Brown Act violations committed by Irwindale related to its CEQA review of the Project. (AR 11676-78; 11681-699.)
Has WMCRI Satisfied Its Burden of Proof as to the Financial Burden Prong of CCP Section 1021.5?
As noted, “it is the party seeking private attorney general fees who ‘bears the burden of establishing that its litigation costs transcend its personal interest.’” (Norberg v. California Coastal Commission (2013) 221 Cal.App.4th 535, 545-56; see also Luck v. S. Pac. Trans. (1990) 218 Cal.App.3d 1, 30 [same].)
In evaluating the element of financial burden, “the inquiry before the trial court [is] whether there were insufficient financial incentives to justify the litigation in economic terms.” (Summit Media LLC v. City of Los Angeles (2015) 240 Cal.App.4th 171, 193.) Thus, in Summit Media, the Court of Appeal held that a billboard companies' competitor had sufficient financial incentives which justified, in economic terms, litigation over the digital conversion of billboards, such that the competitor was not entitled to award of attorney's fees under section 1021.5.
In Beach Colony II v. California Coastal Com. (1985) 166 Cal.App.3d 106, a real estate development partnership, which planned to construct ten condominium units in a coastal area, sought to void a permit condition that would have increased its costs by $300,000. (Id. at 109, 114.) The partnership ultimately prevailed and was awarded attorneys’ fees. (Id. at 109, 111–112.) The Court of Appeal reversed the award, however, because the partnership made “no attempt to compare its litigation costs to the immediate economic benefit it personally received from judicially establishing its right to restore its property, or to the commercial economic gain it anticipates from the renewed ability to build its housing development.” (Id. at 113 & fn. 5.) The administrative record showed that “Colony II admitted before the Commission that if the contested special permit conditions were imposed, its offsite improvement costs would rise from $500,000 to approximately $800,000. According to Colony II, such costs put the ‘project out of the realm of economic reality.’” (Id. at 114.)
WMCRI contends, citing cases, that “alleged pecuniary interests that are once-removed, attenuated, speculative, or indirect and uncertain, do not invalidate a claim for fees under Section 1021.5.” (Mot. 18-19; see e.g. Heron Bay Homeowners Association v. City of San Leandro (2018) 19 Cal.App.5th 376, 391-397 (Heron Bay) [upholding fee award despite evidence that petitioners were motivated by a potential decrease in property values because the “value of the benefit remained ‘uncertain.’”].)
Heron Bay provides some guidance on how the trial court should apply the burden of proof to the financial interest prong: “We conclude that Heron Bay HOA did meet its burden of proving the financial burden of the litigation transcended the value of its private pecuniary interests, making a partial award appropriate. Heron Bay HOA's fees' motion provided detailed information regarding its litigation costs, and correctly pointed out that Heron Bay HOA and its members received no ‘reasonably certain financial benefit’ by securing an order directing San Leandro to prepare an EIR.” (Heron Bay, supra at 397.)
Thus, in summary, WMCRI has the burden of proof to show that the financial burden of the litigation transcended the value of its private pecuniary interests. The court has discretion to award fees if WMCRI’s financial interest is speculative, uncertain, or indirect. However, the court is not required to close its eyes to evidence in the record suggesting that WMCRI has a competitive business interest and financial incentive in challenging the Project under CEQA.
As applied here, WMCRI submits sufficient evidence of the financial burden of the litigation. (See Mot. 21-23; Reply 11-12.) Based on the court’s knowledge of the case and review of WMCRI’s evidence in support of the fee request, and considering WMCRI’s partial success in this action, the court concludes that WMCRI’s reasonable financial cost is substantially less than the amount claimed ($615,745.) Conservatively, the court concludes that WMCRI reasonably incurred no more than $300,000 in fees in this litigation. (See e.g. Leisy Decl. ¶¶ 1-30, Exh. A; Suppl. Leisy Decl. ¶¶ 1-12, Exh. B; Environmental Protection Information Center v. Dept. of Forestry & Fire Protection (2010) 190 Cal.App.4th 217, 238 [discussing reductions in fees for work on unsuccessful and unrelated claims].) However, even if the court were to use the full $615,745 claimed by WMCRI, the court’s analysis would reach the same conclusion.
With respect to its financial interest, WMCRI asserts that it “filed its Petitions because the operations of San Gabriel Hauling and its employees would be directly affected by the construction and operation of the Project, including from traffic, air quality and greenhouse gas emissions. (Lautman Decl., ¶¶ 9, 12.)” (Mot. 19.) Although this evidence of a non-pecuniary interest is relevant, it is not dispositive. WMCRI could have both pecuniary and non-pecuniary reasons for pursuing this CEQA action.
In opposition, Respondents provide various citations to the administrative record that, while not dispositive, support a conclusion that WMCRI is either a direct or indirect competitor of Athens and has a financial interest in blocking the Project. The administrative record apparently refers to Waste Management, Inc. (“WM”) as a direct competitor of Athens. (Oppo. 12-13, citing AR 204.) Letters from Remy Moose Manley, LLP, also suggest that Azusa Land Reclamation, Inc., which WMCRI claims is the owner of the Azusa MRF/TS, is associated with WM. (AR 11227-246; AR 11676-78; 11681-699.) WM was an unsuccessful applicant for the Project. (AR 8474, 8485-86; 101.) Azusa Land Reclamation, Inc. and WMCRI both asserted that Irwindale was undervaluing the Property in amounts of up to $3-$4 million. (AR 11227-246; AR 11271-274.)
In the moving brief, WMCRI makes the following argument, in a footnote: “Should Real Party or the City claim Petitioner has, or had, a direct or indirect financial interest in the litigation warranting a denial of fees, Real Party and the City would be mistaken. As demonstrated in the Lautman Declaration, WMCRI operates a hauling facility across the street from the Project site and is therefore interested in ensuring the City require all feasible mitigation for significant traffic, air quality and greenhouse gas emissions of the Project. Operations at the hauling facility do not fiscally compete, directly or indirectly, with the proposed Project. The Azusa TS/MRF, owned and operated by Azusa Land Reclamation, Inc. (ALRI), is a separate legal entity which is not a petitioner in this litigation. The Azusa TS/MRF, moreover, receives its material from sources other than Irwindale and Athens and, therefore, is not, and would not be, directly fiscally affected by the Project, even if the interests of ALRI were at issue – which they are not because it is not a party to the litigation. (Leisy Decl. ¶ 16; see also Lautman Decl., ¶¶ 4–5, 8–13.)” (Mot. 19, fn. 1.)
To the extent this statement is based on paragraph 16 of the Leisy declaration, it lacks foundation and personal knowledge.
With the moving papers, WMCRI submits no competent evidence regarding the relationship, or lack thereof, between WMCRI and Azusa TS/MRF or that Azusa TS/MRF receives its material from sources other than Irwindale and Athens and would not be directly affected by the Project. In his reply declaration, WMCRI officer Corcoran does not fully explain the business relationship between WMCRI and Azusa TS/MRF. He does admit that WMCRI has used “the Azusa MRF/TS … to service the pre-existing WMCRI franchise agreements.” (See Corcoran Decl. ¶ 10.)
In his opposing declaration, William Vaughn, an experienced waste industry executive, declares under penalty of perjury that “Athens’ proposed Materials Recovery Facility and Transfer Station (the ‘Project’) will compete with not only WMCRI's hauling facility, but also other Waste Management facilities in the surrounding areas and beyond, including, without limitation, the Azusa Materials Recovery Facility and Transfer Station (‘WM Azusa’), which is an anchor facility for Waste Management's entire collections operations in the San Gabriel Valley, and the Azusa Land Reclamation, all of which are within approximately 1-3 miles of one another.” (Vaughn Decl. ¶ 5.) He also states that “The Project and WM Azusa will be a mere 2.3 miles away from one another, and will provide similar services.” (Id. ¶ 6.)
In reply, WMCRI asserts that Vaughn’s declaration lacks “factual explanation or evidentiary support.” No evidentiary objection has been submitted on that basis. Moreover, although the declaration is terse, it is supported by sufficient factual foundation and personal knowledge, as Vaughn describes his extensive experience in the waste and recycling industry. Notably, WMCRI’s reply declarations do not rebut or even dispute the statements made by Vaughn that WM Azusa (i.e. the Azusa MRF/TS) is “an anchor facility for Waste Management's entire collections operations in the San Gabriel Valley,” and that it provides the same services as the Project. (See generally Corcoran Decl. and Suppl. Lautman Decl.) Vaughn’s declaration is also corroborated, in part, by Respondents’ citations to the administrative record.
In reply, WMCRI asserts that “[o]perations at the WMCRI Hauling Facility are different from those that would occur at the proposed MRF/TS.” (Reply 5, citing Suppl. Lautman Decl. ¶ 6.) However, the operations of WMCRI are not fully explained either in the moving papers or the reply. (See Lautman Decl. ¶ 6; Suppl. Lautman Decl. ¶ 6.)
Based on the reply declaration of Corcoran, WMCRI attempts to explain its unsupported assertion, from the moving brief, that “[o]perations at the hauling facility do not fiscally compete, directly or indirectly, with the proposed Project” and that the “Azusa TS/MRF . . . receives its material from sources other than Irwindale and Athens and, therefore, is not, and would not be, directly fiscally affected by the Project, even if the interests of ALRI were at issue –[.]” (Reply 6-7, citing Mot. 19, fn. 1.) The Corcoran declaration, which seeks to satisfy WMCRI’s burden of proof, should have been submitted with the moving papers so that Respondents could address it in opposition. “The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.” (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.) WMCRI does not show good cause to submit reply evidence to satisfy its burden of proof.
Even if the court considers the new reply evidence, it does not satisfy WMCRI’s burden of proof. For instance, neither Corcoran nor Lautman provides a full description of WMCRI’s operations or relationship to WM and the Azusa MRF/TS.
WMCRI contends that “[t]he Vaughn Declaration and Joint Opposition also improperly invite this Court, without citation to any controlling authority, to consider the vaguely alleged fiscal and competitive interests of a legal entity entirely separate from Petitioner (i.e. interests of the Azusa MRF/TS).” (Reply 4.) Neither WMCRI nor Respondents cite a any case law on the relevance of the financial interests of a parent company, subsidiary, or corporate affiliate for the financial interest prong of section 1021.5. The court cannot conclude that the financial interests of a parent, subsidiary, or corporate affiliate are irrelevant. The relevance of the financial interest, if any, would depend on the facts and circumstances of each case. WMCRI has the initial burden of proof to explain evidence in the record suggesting that WMRCI has a financial interest in blocking the Project, either directly or through an affiliate.
Considering the record as a whole (including the 60,000-page AR and all declarations), the court concludes that WMCRI has not met its burden of proof to show that the financial burden of the litigation transcended the value of its private pecuniary interests. Based on the court’s conservative assessment, WMCRI’s reasonable financial burden in this action was no more than $300,000. By its own admission, WMCRI’s reasonable financial burden was no more than $615,745. Especially since the action was joined with Baldwin Park’s writ petition, WMRCI had a relatively high probability of prevailing on at least some CEQA claims, resulting in the Project being delayed temporarily or permanently for additional CEQA review. WMCRI’s financial interest, if any, would be discounted by that probability of success and compared against the financial costs specified above. The initial burden of proof and persuasion is on WMCRI to show that any financial interest, either directly or through an affiliate like Azusa MRF/TS, is too speculative, uncertain, or indirect to give WMCRI a sufficient financial incentive to pursue this action. Under the facts and circumstances of this case, WMCRI does not satisfy that burden.
The motion is DENIED.
 Irwindale includes the City of Irwindale, City Council of the City of Irwindale, Planning Commission of the City of Irwindale, Successor Agency to the Irwindale Community Redevelopment Agency, and Oversight Board of the Successor Agency to the Irwindale Community Redevelopment Agency.
 Although cited in opposition, AR 204 was not submitted with the administrative record pages lodged on DropBox on August 18, 2020. In reply, WMCRI did not dispute the accuracy of Respondents’ citation to AR 204. At the hearing, counsel should verify that the citation to AR 204 on pages 13-14 of the opposition is accurate.
 These two entities were referred to collectively as “WM” in the letter.