Andy’s BP v. City of >San Jose>





















Filed 5/9/13 Andy’s BP v. City of San Jose CA6

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.





IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SIXTH
APPELLATE DISTRICT




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ANDY’S BP, INC., et al., Plaintiffs and Appellants, v. CITY OF SAN JOSE, Defendant and Respondent; AMIR SHIRAZI et al., Real Parties in Interest and Respondents.

No. H037173 (Santa Clara County Super. Ct. No. CV176412)

Appellants
Andy’s BP, Inc. and Andy Saberi challenge the trial court’s order denying them
an award of attorney’s fees under Code of Civil Procedure section 1021.5.href="#_ftn1" name="_ftnref1" title="">[1] We find no error and affirm.



I. Factual and Procedural
Background

Respondent
Amir Shirazi owns the gas station, Moe’s Stop, which is located at the corner
of North 33rd Street and McKee
Road in San Jose. The project underlying the present litigation
involves the expansion of Moe’s Stop and consists of demolition of a house on
the property, replacement of the house with three gasoline tanks, and
construction of a canopy over the tanks.
Respondent City
of San Jose (City) approved a
negative declaration for the project and upheld the planning commission’s
approval of the conditional use permit for the project. Appellants own a gas station, Gas and Shop,
on another corner of the same intersection.

In July
2010, appellants filed a petition for writ of mandate against respondent City
in which they sought invalidation of the City’s approval of the project and the
preparation of an environmental impact
report (EIR). Appellants argued that
the City’s approval of the project failed to comply with the California
Environmental Quality Act (CEQA) because the City ignored evidence that
underground gasoline tanks on the project site had leaked and that the project
would have a significant impact on traffic.href="#_ftn2" name="_ftnref2" title="">[2]

In March 2011, the trial court
granted the petition and issued a writ ordering the City: (1) to set aside its adoption of the negative
declaration and approval of the conditional use permit for the project, and (2)
to prepare an EIR.

In May 2011, appellants filed a
motion for an order awarding attorney’s fees under the private attorney general
theory. Appellants attached declarations
by their counsel James M. Dombroski and Thomas I. Saberi in which they set
forth their experience and hourly rates.
They also attached various court documents from the underlying litigation,
including copies of the notice to the Attorney General that gave the Attorney
General the opportunity to appear and prosecute the petition on behalf of the
public and the Attorney General’s acknowledgment of receipt of the
petition. In addition, appellants
attached an itemization of various services rendered by Dombroski and
Saberi. Appellants sought attorney’s
fees of $83,120.

Shirazi
filed opposition to the motion. Relying
on Conservatorship of Whitley (2010)
50 Cal.4th 1206 (Whitley), Shiraz
argued that appellants failed to show:
(1) the litigation had conferred a significant benefit on the general
public or a large class of persons; and (2) the financial burden of the private
enforcement warranted subsidizing appellants’ counsel.

Shirazi’s declaration was attached
to the memorandum of points and authorities in opposition to the motion for
attorney’s fees. He stated that Andy
Saberi and his son Thomas I. Saberi operate Gas and Shop through the
corporation named Andy’s BP, Inc. In
2008, Andy’s BP, Inc., which was represented by Dombroski and Thomas I. Saberi,
filed a case against real parties in interest and alleged that Moe’s Stop sold
gasoline below cost to injure it and/or destroy competition. Real parties in interest filed a
cross-complaint and made the same allegation against Andy’s BP, Inc., Andy
Saberi, and Thomas I. Saberi. In April
2011, the trial court in that case issued a tentative ruling denying Andy’s BP,
Inc.’s motion for summary judgment. As
Shirazi was leaving the courthouse, Thomas I. Saberi stated to him, “we are going
to tear down your station.” (Boldface
& italics omitted.) At a subsequent
deposition in that case, Andy Saberi told Shirazi, “you will never make any
money at your station as long as I am alive.”
(Boldface & italics omitted.)
He also told him that “he had 15 gas stations and did not need to make
money at the station near Moe’s Stop.”
According to Shirazi, he closed two pumps for the expansion, and Moe’s
Stop has lost and would continue to lose customers to Gas and Shop. He also stated that Gas and Shop “will gain
customers for as long as the new portion of Moe’s Stop cannot open for
business.”

The City joined in Shirazi’s
opposition to the motion for attorney’s fees.

In reply to
the opposition to the motion for attorney’s fees, appellants argued: (1) their litigation had conferred a benefit
on the public, and (2) there were “insufficient financial incentives to justify
the litigation in economic terms.” They
also submitted the declarations of Thomas I. Saberi and Dombroski. Thomas I. Saberi’s declaration stated that
“Mr. Shirazi made the statement that he would like the trial in Andy’s BP v.
Shirazi to take place as soon as possible because ‘he wanted to take care of us
before the State of California does’ referring to a pending action in Alameda
County that Mr. Shirazi has been following that my family has with the State of
California. In response, I said to him
that he ‘needs to worry about this case and not our other litigation because
your station may be torn down.’” Thomas
I. Saberi also stated that he was present when his father Andy Saberi made the
alleged statement during a deposition break that he believed were settlement
negotiations and should be excluded. The
complete statement by Andy Saberi was “you will never make any money at your
station as long as I am alive with the way you are pricing and with the margins
you have.”

At the
hearing on the motion, the trial court noted that it had reviewed the parties’
briefing. Following argument, the trial
court denied the motion and stated: “I
agree with the opposition that what is lacking is an adequate demonstration of
a significant benefit incurred. Also as
it relates to the third component or third element of lacking in my opinion is
the necessity as it relates to the final -- financial burden I should say. In making this ruling I have only considered
admissible evidence.”

Appellants
filed a timely notice of appeal.



II. Discussion

Appellants
contend that the trial court improperly denied their motion for attorney’s fees
based on a private attorney general theory.


Section 1021.5 codified the private
attorney general theory. It provides in
relevant part: “Upon motion, a court may
award attorneys’ fees to a successful party against one or more opposing
parties in any action which has resulted in the enforcement of an important
right affecting the public interest if:
(a) a significant benefit, whether pecuniary or nonpecuniary, has been
conferred on the general public or a large class of persons, (b) the necessity
and financial burden of private enforcement, or of enforcement by one public
entity against another public entity, 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, if any.” (§
1021.5.) “The burden is on the claimant
to establish each prerequisite to an award of attorney fees under section
1021.5.” (Ebbetts Pass Forest Watch v. Department of Forestry & Fire
Protection (2010) 187 Cal.App.4th 376, 381 (Ebbetts Pass).)

“
‘On review of an award of attorney fees after trial, the normal href="http://www.fearnotlaw.com/">standard of review is abuse of
discretion. However, de novo review of
such a trial court order is warranted where the determination of whether the
criteria for an award of attorney fees and costs in this context have been
satisfied amounts to statutory construction and a question of law.’ ”
(Connerly v. State Personnel Bd.
(2006) 37 Cal.4th 1169, 1175.) “ ‘ “In reviewing the trial court’s
decision, we must pay ‘ “particular
attention to the trial court’s stated reasons in denying or awarding fees and
[see] whether it applied the proper standards of law in reaching its decision.” ’
[Citation.]” [Citation.]’ ”
(Center for Biological Diversity
v. County of San Bernardino (2010) 185 Cal.App.4th 866, 892.)

Appellants contend that the trial
court failed to apply the correct standard for its determination. They claim that the trial court failed to
apply the presumption that they were entitled to attorney’s fees, because the
Attorney General declined to prosecute the petition on behalf of the
public. This claim requires statutory
construction and thus our review is de novo.
No such presumption of entitlement to attorney’s fees exists. “If the Attorney General is properly served
and elects not to intervene, then a plaintiff’s pursuit of a lawsuit becomes
presumptively ‘necessary.’ ” (Schwartz
v. City of Rosemead (1984) 155 Cal.App.3d 547, 561.) However, entitlement to attorney’s fees under
section 1021.5 also requires the claimant to establish the public benefit and
financial burden factors.

Appellants also contend
“[r]espondents’ oppositions to the underlying motion and the rationale advanced
by the trial court related principally to the fact that [a]ppellants’ subject
motivation for bring the CEQA petition was personal animosity against
[Shiraz].” Thus, relying on >Whitley, supra, 50 Cal.4th at p. 1210, they argue that the trial court erred
because “a litigant’s personal nonpecuniary motives may not be used to
disqualify him from an award of attorney’s fees under a private attorney
general theory.”

Appellants’ characterization of the
record is inaccurate. Shiraz also relied
on Whitley, supra, 50 Cal.4th 1206, and argued that appellants failed to show
both the public benefit and financial burden factors set forth in section
1021.5. The trial court agreed with
Shiraz and denied the motion based on its findings that appellants had failed
to satisfy its burden of establishing these statutory factors.

The decision as to whether
appellants had met their burden of satisfying the statutory factors does not
require statutory construction but merely application of the law to the
facts. We therefore apply the abuse of discretion
standard of review. “The decision
whether to award attorney fees pursuant to [section 1021.5] lies within the
discretion of the trial court and will not be disturbed on appeal absent a
prejudicial abuse of discretion resulting in a manifest miscarriage of justice.” (Galante
Vineyards v. Monterey Peninsula Water Management Dist. (1997) 60
Cal.App.4th 1109, 1125.)

“ ‘Section
1021.5 was not designed as a method for rewarding litigants motivated by their
own pecuniary interests who only coincidentally protect the public
interest.’ [Citations.]” (Roybal
v. Governing Bd. of Salinas City Elementary Schools Dist. (2008) 159
Cal.App.4th 1143, 1151.) “In determining
the financial burden on litigants, courts have quite logically 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. ‘ “An
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.’ [Citation.]”
’ [Citation.] ‘This requirement focuses on the financial
burdens and incentives involved in bringing the lawsuit.’ [Citation.]
[¶] . . . [¶] ‘After
approximating the estimated value of the case at the time the vital litigation
decisions were being made, the court must then turn to the costs of the
litigation—the legal fees, deposition costs, expert witness fees, etc., which
may have been required to bring the case to fruition. . . . [¶]
The final step is to place the estimated value of the case beside the actual
cost and make the value judgment whether it is desirable to offer the bounty of
a court-awarded fee in order to encourage litigation of the sort involved in
this case. . . . [A]
bounty will be appropriate except where the expected value of the litigant’s
own monetary award exceeds by a substantial margin the actual litigation costs.’ ”
(Whitley, supra, 50 Cal.4th at pp. 1215-1216.) While it is true that “[a] pecuniary interest
in the outcome of the litigation is not disqualifying[,]
‘. . . the issue [before the trial court] is whether the
financial burden placed on the party is out of proportion to its personal stake
in the lawsuit.’ ” (Lyons
v. Chinese Hospital Assn. (2006) 136 Cal.App.4th 1331, 1352.)

Here, appellants’ counsel stated
that they had spent 239.2 hours on the underlying litigation and the motion for
attorney’s fees, and thus the total amount of fees incurred was $83,120. However, appellants have overlooked evidence
of their economic stake in the litigation.href="#_ftn3" name="_ftnref3" title="">[3] Appellants compete with Shiraz at the same
intersection for customers seeking to purchase gasoline. Appellants clearly had a financial incentive
in bring the underlying lawsuit to block or delay the expansion of Shiraz’s gas
station. Thus, the trial court impliedly
found that appellants had failed in their burden to establish: (1) the costs of litigation were out of
proportion to their individual stake, and (2) it was “ ‘desirable to offer the bounty of a court-awarded fee in order
to encourage litigation of the sort involved in this case.’ ”
(Whitley, supra, 50 Cal.4th at p. 1216.)
Accordingly, the trial court did not abuse its discretion in denying
appellants’ motion for attorney’s fees.href="#_ftn4" name="_ftnref4" title="">[4]



III. Disposition

The order
denying appellants’ motion for attorney’s fees is affirmed.









_______________________________

Mihara,
J.







WE CONCUR:













______________________________

Premo, Acting P. J.













______________________________

Márquez, J.

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id=ftn1>

href="#_ftnref1"
name="_ftn1" title="">[1] All
further statutory references are to the Code of Civil Procedure.

id=ftn2>

href="#_ftnref2"
name="_ftn2" title="">[2] The
petition listed the real parties in interest as Shirazi, individually and dba
Moe’s Stop, and Shirazi, as trustee for the Mohammad M. Shirazi Living Trust.