News and Articles

August 23, 2012

A CEQA Litigant’s Non-Pecuniary Personal Interests Are Not Relevant in Evaluating the “Financial Burden” Element of Fee Awards Under Code of Civil Procedure Section 1021.5.

City of Maywood v. Los Angeles Unified School District [Second District Court of Appeal Nos. B233739, B236408, filed 7/18/12]

By Andrea A. Matarazzo

The City of Maywood filed a petition for writ of mandate seeking to overturn a decision by the Los Angeles Unified School District (“LAUSD”) to certify a final environmental impact report (“FEIR”) analyzing the environmental consequences of constructing a high school.  The City argued that the FEIR did not satisfy CEQA because it failed to adequately assess various environmental impacts and did not include a sufficient discussion of project alternatives.  The City further argued that the LAUSD’s decision to certify the FEIR violated school siting procedures set forth in the Education Code.


Although the trial court rejected most of the City’s claims, it found that the FEIR was deficient in four ways.  First, it concluded that the report failed to consider whether the design of the school campus, which was bisected by an active roadway, presented any significant impacts to pedestrian safety.  Second, the court concluded that the report did not adequately assess whether the project site was contaminated with hazardous materials.  Third, it found that the report failed to analyze the cumulative impacts from a planned expansion of the I-710 freeway.  Fourth, the court ruled that the report did not contain a sufficient discussion of project alternatives.  As a result, the trial court entered a peremptory writ prohibiting the LAUSD from taking any further actions to approve the project until it had prepared and certified a revised EIR.  In addition, the court granted a motion awarding the City approximately $670,000 in attorneys’ fees under the private attorney general doctrine set forth in Code of Civil Procedure section 1021.5.


The LAUSD appealed the peremptory writ and the trial court’s order awarding attorneys’ fees.  The Court of Appeal affirmed in part, reversed in part and remanded the matter for further proceedings.  In the unpublished portions of the opinion, the appellate court affirmed the aspects of the writ requiring the LAUSD to address whether the proposed design of the project presents significant impacts to pedestrian safety; the remainder of the trial court’s writ was reversed.  In the published portion of the opinion, the Court of Appeal reversed the trial court’s order awarding attorneys’ fees and remanded the matter for further proceedings.  The appellate court noted that in light of its reversal of significant portions of the trial court’s decision, the order granting attorneys’ fees also must be reversed.  “Any grant or denial of attorneys’ fees under section 1021.5 must follow the entry of judgment on remand and must be based on the more limited results obtained in the new judgment.”  The Court of Appeal emphasized that in evaluating whether to award attorneys’ fees on remand, the trial court must follow the California Supreme Court’s guidance in Conservatorship of Whitley (2010) 50 Cal.4th 1214 (“Whitley”), in which it clarified the proper method of evaluating the “necessity and financial burden” element of Code of Civil Procedure section 1021.5.


In Whitley, the Court held that a litigant’s non-pecuniary interests are not relevant in evaluating section 1021.5’s financial burden criterion.  “Therefore, when assessing this factor in the context of a public entity’s legal victory, the trial court may only consider the public entity’s pecuniary interests and the pecuniary interests of its constituents.”  To the extent that the prior opinions in County of Inyo v. City of Los Angeles (1978) 78 Cal.App.3d 82, City of Hawaiian Gardens v. City of Long Beach (1998) 61 Cal.App.4th 1100, and Brown v. Tehama County Board of Supervisors (2007) 149 Cal.App.4th 422 suggest otherwise, “that suggestion does not survive Whitley.”  Accordingly, the appellate court explained, if the City “elects to renew its motion for attorneys’ fees on remand,” then “the trial court should reassess whether fees are appropriate given the outcome of this appeal and, if so, the appropriate amount of any such fees, applying Whitley.”


Authored by:

Andrea A. Matarazzo

Andrea’s practice focuses on land use law and related environmental issues in California and the western United States.  She assists developers, business owners, and public agencies in all aspects of project permitting and entitlements, environmental compliance, and litigation, particularly in connection with environmental review under CEQA and NEPA.  Her practice includes planning and zoning law, endangered species regulations, air quality, water supply and water quality mandates, wetlands, and other regulatory requirements.

(916) 496-8500

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