County of Los Angeles v. Community Revelopment Agency

Filed 9/20/07 County of Los Angeles v. Community Revelopment Agency CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEALS from a judgment and order of the Superior Court of Los Angeles County, Andria K. Richey, Judge. Affirmed.

Ross, Dixon & Bell, Paul L. Gale, Jenece D. Solomon; Raymond G. Fortner, Jr., County Counsel, and Thomas M. Tyrrell, Principal Deputy County Counsel, for Plaintiff and Appellant.

Moskowitz, Brestoff, Winston & Blinderman, Barbara S. Blinderman; Jeffrey S. Cohen; Kaplanis & Grimm and Trevor A. Grimm for Defendant and Appellant.

Rockard J. Delgadillo, City Attorney, Curt S. Kidder, Timothy Jon Chung, Deputy City Attorneys; Aleshire & Wynder and June Ailin for Defendants and Respondents.

_____________________________________________

County of Los Angeles appeals a judgment partially invalidating an ordinance that adopted a redevelopment plan for a new redevelopment project. Pursuant to instructions by this court in a prior opinion, the judgment invalidates the ordinance to the extent it would allow Community Redevelopment Agency of City of Los Angeles (1) to receive additional tax increment funds derived from property formerly within another redevelopment project area, (2) to incur additional debt repayable by tax increment funds in connection with the transferred property, and (3) to impose land use restrictions on the transferred property that would be effective beyond 35 years from the date of adoption of the prior redevelopment plan.

The county contends those restrictions on the new redevelopment plan render the plan economically infeasible. The county contends the city councils finding of economic feasibility made when the plan was adopted in May 2002 therefore is no longer supported by substantial evidence. Ernani Bernardi, Howard Jarvis Taxpayers Association (Jarvis), and Jon Coupal join in the countys opening brief and also challenge the superior courts refusal to name Jarvis and Coupal as parties to the judgment, the amount of a postjudgment attorney fee award in favor of Bernardi, and the denial of Bernardis request for an interim fee award.

We conclude that the sufficiency of the evidence supporting the city councils decision to adopt the redevelopment plan must be evaluated based on the evidence in the administrative record as of the time of that decision. Absent a showing that the evidence in the record in existence at the time of the decision compelled the conclusion that the redevelopment plan was economically unfeasible, the county has shown no error. We conclude further that the appellants have shown no legal basis to require the city council to reevaluate the economic feasibility in light of the changed circumstances or to prepare new reports reevaluating the redevelopment plan, and that they have shown no prejudicial error in the attorney fee award.

FACTUAL AND PROCEDURAL BACKGROUND

1. Events Surrounding the Consent Judgment and Attempted Modification

The city council adopted a redevelopment plan for the Central Business District (CBD) redevelopment project in July 1975. Bernardi, then a member of city council, and others filed a complaint challenging the validity of the CBD redevelopment plan. Bernardi, the city, the county, and others stipulated to the entry of a judgment. The court entered a consent judgment in November 1977 validating the plan and imposing certain conditions, including a $750 million limit on the amount of tax increment funds that the redevelopment agency could receive in connection with the CBD redevelopment project. The city, the redevelopment agency, the county, and others unsuccessfully moved the superior court to modify the consent judgment to increase that limit, and we affirmed the denial of the motion. (Bernardi v. City Council (1997) 54 Cal.App.4th 426.) By the 1999-2000 fiscal year, the city had received the total amount of tax increment funds allowable under the consent judgment.

2. Amendment of the CBD Redevelopment Plan and Creation of the City

Center and Central Industrial Redevelopment Plans

The redevelopment agency and the city sought another means to avoid the restrictions on tax increment funding imposed by the consent judgment. The city council enacted Ordinance No. 174,592 in May 2002 amending the CBD redevelopment plan by removing approximately 1,009 acres from the CBD project area. The city council then enacted Ordinances Nos. 174,593 and 174,978 in May 2002 and November 2002, respectively, adopting two new redevelopment plans for the City Center and Central Industrial redevelopment projects. The project area for each of the new redevelopment projects included property formerly within the CBD project area. The new redevelopment plans provided for the redevelopment agency to receive tax increment funds derived from all taxable property within the project areas, including the property formerly within the CBD project area.

3. CityCenter Case and the Countys Complaint in the Present Action

The county filed a complaint in June 2002 against the redevelopment agency and its board of directors, City of Los Angeles and city council, and all persons interested in the matter, challenging the validity of the amendment to the CBD redevelopment plan and the adoption of the City Center redevelopment plan (County of Los Angeles v. Community Redevelopment Agency of City of Los Angeles (L.A. Super. Ct. No. BC276472)). Jerome Higgins and others filed a complaint in July 2002 against the same defendants challenging the validity of the amendment to the CBD redevelopment plan and the adoption of the City Center redevelopment plan (Wiggins v. Community Redevelopment Agency of City of Los Angeles (L.A. Super. Ct. No. BC277539)). Bernardi filed an answer in each action in which he challenged the validity of the two ordinances in light of the consent judgment. The court consolidated the two actions for trial.[1]

Bernardi executed an Acknowledgment of Assignment in December 2002 stating that in order to ensure the enforcement of the consent judgment, to ensure the continuation of his standing and representation in the City Center case, and to provide for the prosecution of any similar actions relating to the consent judgment, he assigned his interests in the consent judgment and in the two referenced actions to himself, Jarvis, and Coupal.

The county filed a complaint in the present action in January 2003 against the redevelopment agency and its board of directors, City of Los Angeles and its city council, and all persons interested in the matter of the adoption of the Central Industrial redevelopment plan. The complaint alleges that Ordinance No. 174,978 undermines the tax increment financing restrictions, defeats the purpose and effect of the judgment, and improperly deprives taxing agencies of tax revenues. The complaint also challenges the adoption of the Central Industrial redevelopment plan on other grounds.

Bernardi, Jarvis, and Coupal filed an answer challenging the validity of the ordinance in light of the consent judgment. The answer alleged that Bernardi had assigned the consent judgment to himself, Jarvis, and Coupal to ensure that the consent judgment is enforced.

4. Prior Judgments and Appeals in the CityCenter Case and the

Present Action

The court in the City Center case entered a judgment after trial in July 2003 declaring Ordinances Nos. 174,592 and 174,593 invalid and unlawful. The court later awarded Bernardi $115,000 in attorney fees under Code of Civil Procedure section 1021.5. The court in the present action entered a judgment after trial in October 2003 declaring Ordinance No. 174,978 invalid and unlawful. Bernardi later moved for an award of attorney fees under section 1021.5 in the amount of $25,620, and the court awarded him $15,000. The redevelopment agency and its board of directors, the city, and city council appealed the two judgments and the orders awarding fees.

We consolidated the four appeals, reversed the judgments with directions, and reversed the orders awarding attorney fees. (County of Los Angeles v. Community Redevelopment Agency of City of Los Angeles (Apr. 19, 2005, B169633) [nonpub. opn.] [p. 32].) We concluded that Ordinances Nos. 174,593 and 174,978 violated the implied covenant of good faith and fair dealing contained in the consent judgment, but that those ordinances were only partially invalid to the extent they allowed the redevelopment agency (1) to receive additional tax increment funds derived from property formerly within the CBD redevelopment project area; (2) to incur additional debt repayable by tax increment funds in connection with the transferred property; and (3) to impose land use restrictions on the transferred property that would be effective beyond 35 years from the date of adoption of the CBD redevelopment plan. (Id. at p. 24.) We stated further: These limitations, however, do not necessarily prevent the redevelopment agency and the city from including property formerly included in the CBD project area in new redevelopment projects, provided that the redevelopment agency receive no additional tax increment funds derived from the transferred property and incur no additional debt repayable by tax increment funds in connection with the transferred property, and provided that any land use restrictions imposed on the transferred property under the new plans must become ineffective as to the transferred property 35 years after the date of adoption of the CBD redevelopment plan. (Id. at pp. 24-25.) We also concluded that Ordinance No. 174,592 did not violate the consent judgment. (Id. at p. 24.)

We concluded that the invalid portions of the ordinances were severable from the portions that had not been shown to be invalid. In light of the severability clauses in the ordinances, we stated: A severability clause and the ability to sever mechanically the invalid portion from the valid portions of an enactment ordinarily will allow severance, but only if the remainder of the enactment is complete in itself and would have been adopted without the invalid portion. (Sonoma County Organization of Public Employees v. County of Sonoma (1979) 23 Cal.3d 296, 320.) . . . [] An invalid part of an enactment is severable only if it is grammatically, functionally, and volitionally separable from the remainder. (Calfarm Ins. Co. v. Deukmejian [(1989)] 48 Cal.3d [805,] 821.) . . . The invalid part is functionally separable if it is not necessary to the operation and purpose of the enactment. (Hotel Employees & Restaurant Employees Internat. Union v. Davis(1999) 21 Cal.4th 585, 613; Legislature v. Eu (1991) 54 Cal.3d 492, 535.) The invalid part is volitionally separable if, in the courts judgment, the enacting body would have enacted the remainder of the enactment without the invalid part. (Calfarm, supra, at pp. 821, 822.) (County of Los Angeles v. Community Redevelopment Agency of City of Los Angeles, supra, B169633 [at pp. 25-26].)

We concluded that the invalid portions were separable from the remainder grammatically, functionally, and volitionally. (County of Los Angeles v. Community Redevelopment Agency of City of Los Angeles, supra, B169633 [at pp. 26-29].) With respect to functional and volitional separability, we stated:

The invalid portions are functionally separable because the redevelopment agency can implement the City Center and Central Industrial redevelopment plans as limited in this manner. The redevelopment agency can fund redevelopment in other parts of the project areas using tax increment funds derived from property that was not formerly part of the CBD redevelopment project area, can fund redevelopment on property that formerly was part of the CBD project area using revenue from other sources, and can subject all property within the new project areas to land use restrictions until July 18, 2010, when the land use restrictions applicable to the transferred property must expire. We can say with confidence that despite the limitations that we impose, the new redevelopment plans as limited will closely effectuate the city councils clearly expressed public policy of alleviating blight in the new project areas. (See Kopp v. Fair Pol. Practices Com. [(1995)] 11 Cal.4th [607,] 661.)

Finally, it appears that the city council would have adopted the City Center and Central Industrial redevelopment plans as limited in this manner rather than forego the new redevelopment projects altogether. The new redevelopment projects collectively encompass approximately 573 acres of land apart from the property formerly included in the CBD redevelopment project area. The city council found the new project areas to be blighted and in need of redevelopment and found that the inclusion of any nonblighted property in the new project areas was necessary for effective redevelopment. The record does not show that the city councils determination to alleviate blight and promote redevelopment in the new project areas depended on its ability to circumvent the restrictions applicable to property formerly included in the CBD project area. The restrictions that we impose presumably will not impair the redevelopment agencys ability to promote redevelopment in the new project areas, including the property formerly within the CBD project area, to such a degree as to suggest that the city council would rather forego redevelopment efforts in the new project areas altogether than proceed under the redevelopment plans as limited. We can say with confidence that despite the limitations that we impose, the city council would have preferred the new redevelopment plans as limited to no new redevelopment plans at all. (See Kopp v. Fair Pol. Practices Com., supra, 11 Cal.4th at p. 661.) Of course, the ultimate decision whether to implement the redevelopment plans as limited or properly amend or revoke the plans is for the city council to decide. (Ibid.) (County of Los Angeles v. Community Redevelopment Agency of City of Los Angeles, supra, B169633 [at pp. 28-29].)

We stated that our opinion addressed only the question decided by the superior court concerning whether the ordinances violated the consent judgment, and did not address other challenges to the ordinances that the superior court did not decide. (County of Los Angeles v. Community Redevelopment Agency of City of Los Angeles, supra, B169633 [at p. 30].) We reversed the judgment in this case with directions to the superior court that the judgment to be entered at the conclusion of trial must state that Ordinance No. 174,978 is partially invalid as stated in the opinion. (Id. at p. 32.) We stated with respect to the attorney fee awards in favor of Bernardi: An order awarding attorney fees under Code of Civil Procedure section 1021.5 must be reversed if the judgment on which it is based is reversed. (California Grocers Assn. v. Bank of America (1994) 22 Cal.App.4th 205, 220.) The superior court can reconsider the question of Bernardis entitlement to attorney fees in each case following entry of a judgment on remand. (Bullock v. City and County of San Francisco (1990) 221 Cal.App.3d 1072, 1094.) (Id. at p. 31.) We reversed the orders awarding attorney fees with no specific directions to the superior court. (Id. at p. 32.)

5. Proceedings in the Present Action on Remand

Bernardi moved the superior court for an interim award of attorney fees after we remanded this matter to the superior court. He argued that the superior court previously had determined that $15,000 was the reasonable amount of attorney fees awardable after the first trial, that our directions to the superior court preserved his success in the first trial despite our reversal of the judgment, and that he should recover as an interim fee award the same amount previously awarded. The redevelopment agency and the city argued in opposition that the statement in our opinion that The superior court can reconsider the question of Bernardis entitlement to attorney fees in each case following entry of a judgment on remand compelled the conclusion that Bernardi was not entitled to an interim fee award, that apart from our opinion there was no authority for an interim award in these circumstances, and that Bernardis previous success of invalidating the ordinances in their entirety based on the consent judgment was limited by our holding that the consent judgment justified the invalidation of the ordinances only in part. The superior court denied the motion at a hearing on September 15, 2005, and filed a signed order on October 4, 2005, stating, The motion is premature in light of the Court of Appeals direction that the trial court can reconsider the question of Bernardis entitlement to attorney fees . . . following entry of a judgment on remand and the fact that Bernardi remains a party to this case.

The county argued in its trial brief that the partial invalidation of the Central Industrial redevelopment plan renders the plan economically infeasible and compels the conclusion that there is no substantial evidence to support the city councils finding of economic feasibility. The county argued further that the redevelopment agency must reevaluate its proposed projects and five-year implementation plan, prepare new reports to taxing agencies and to the city council under the Health and Safety Code in light of the changed circumstances, and hold a new public hearing. The county argued that because the plan is economically infeasibile, the redevelopment plan should be invalidated in its entirety. The county did not challenge the redevelopment plan on the other grounds alleged in the countys complaint. The county filed a declaration by Robert T. Moran estimating the amount of tax increment revenue for the Central Industrial redevelopment plan excluding any revenue from property formerly within the CBD redevelopment area. The county stated that the administrative record should be augmented to include that new information.[2]

The redevelopment agency and the city argued in their responsive trial brief that the county failed to exhaust its administrative remedies on the issue of economic feasibility because neither the county nor any other person challenged the economic feasibility of the redevelopment plan during the plan adoption process. They also argued that the county was precluded from raising the issue at trial because the county failed to allege in its complaint that the plan is economically infeasible. They argued further that the plan is flexible and economically feasible and that the redevelopment agency is not required to prepare a new report. The redevelopment agency and the city filed objections to the Moran declaration in which they opposed the countys request to augment the administrative record with the Moran declaration and also objected to the declaration on other grounds. Bernardi died in January 2006.[3]

The superior court in a tentative statement of decision dated March 17, 2006, concluded that the county failed to exhaust its administrative remedies on the issue of the economic feasibility of the Central Industrial redevelopment plan in light of the partial invalidity of the plan, and that the issue was not within the scope of the countys complaint. The court tentatively sustained the objections to the Moran declaration and stated, since the Court has not considered the Moran declaration, nothing before this Court indicates that the plan is in fact no longer financially feasible such that the Ordinance in its entirety must be invalidated.[4]

The parties submitted proposed judgments and objections to proposed judgments. Bernardi, Jarvis, and Coupal argued that because they all had joined in their answer, the judgment should identify each of them as a party and provide for their recovery of attorney fees. The redevelopment agency and the city argued that the prior judgment entered in October 2003 had identified only Bernardi and not Jarvis or Coupal, and that Bernardis assignment of the consent judgment was invalid because Jarvis and Coupal were not parties to the proceeding that resulted in the consent judgment and therefore had no standing to enforce the consent judgment.

The superior court entered a judgment on May 4, 2006, stating that Ordinance No. 174,978 violates the consent judgment and therefore is partially invalid, consistent with the directions in our prior opinion. The judgment denies any further relief to the county on the other grounds alleged in the complaint. The judgment identifies Bernardi as an Interested Person, identifies Bernardis trial counsel, and states that Bernardi did not participate in the trial because the only issue raised by Bernardi was resolved by our prior opinion. The judgment states that Bernardi is entitled to recover costs from the redevelopment agency and the city in an amount that originally was left blank. The judgment makes no reference to Jarvis or Coupal. The county appealed the judgment as did Bernardi, Jarvis, and Coupal jointly.

Bernardi, Jarvis, and Coupal applied ex parte for an order correcting the judgment nunc pro tunc to identify them as parties to the judgment. The court denied the application, stating that the moving parties had failed to show the urgency required for ex parte relief. The same parties then filed a noticed motion requesting the same relief. They argued that the omission of Jarvis and Coupal from the judgment was a clerical mistake that should be corrected under Code of Civil Procedure section 473, subdivision (d). The court denied the motion in an order filed on September 18, 2006, stating: The Court made a determination on the merits, having reviewed the counter proposed judgment and related pleadings filed by the moving parties, to omit reference to Jon Coupal and Howard Jarvis Taxpayers Association from the judgment. Thus, the omission of Jon Coupal and Howard Jarvis Taxpayers Association was not a clerical error. Filing of the notices of appeal divested this Court of jurisdiction to make any changes in the judgment other than correction of clerical errors. Accordingly, the motion is denied.

Bernardi, Jarvis, and Coupal also moved for an award of attorney fees under Code of Civil Procedure section 1021.5. They requested the same amount that Bernardi had requested after the prior judgment in this case ($25,620), plus additional fees incurred after our reversal of the judgment, for a total request of $41,685. They requested that the fees be paid directly to their counsel and stated in their motion that they had not paid any fees to their counsel. The court granted the motion and awarded $22,980 in attorney fees in an order filed on September 18, 2006. Although the motion was filed on behalf of Bernardi, Jarvis, and Coupal, the order referred to only the motion by Bernardi and stated that the motion was granted in the amount of $22,980. Bernardi, Jarvis, and Coupal appealed the order.

CONTENTIONS

The county contends (1) the partial invalidation of the Central Industrial redevelopment plan renders the plan economically infeasible and compels the conclusion that there no longer is substantial evidence to support the city councils finding of economic feasibility; (2) in light of the changed circumstances, the redevelopment agency must reevaluate its proposed projects and five-year implementation plan, prepare new reports to taxing agencies and to the city council pursuant to Health and Safety Code sections 33344.5 and 33352, and hold a new public hearing; (3) the county exhausted its administrative remedies by challenging the redevelopment plan as proposed, and the county was not required to anticipate the partial invalidation of the plan and challenge the plan as so revised; (4) the countys complaint adequately alleges in general terms that the findings supporting the city council decision are not supported by the evidence; and (5) the denial of the countys request to augment the administrative record was error.

Bernardi, Jarvis, and Coupal join in the countys opening brief and also contend (1) they are parties to the action and proper assignees, and each of them should be a party to the judgment; (2) the denial of Bernardis motion for an interim award of attorney fees was error; and (3) they are entitled to $39,935 in attorney fees, rather than the $22,980 awarded by the court.

DISCUSSION

1. Relevant Community Redevelopment Law Requirements

The Community Redevelopment Law (Health & Saf. Code,  33000 et seq.)[5]provides that a redevelopment agency must prepare and approve a redevelopment plan for each project area. ( 33330.) A redevelopment plan may provide for the redevelopment agency to receive any increase in property tax revenues from property within the project area, and that the taxing agencies will continue to receive the amounts that they received based on the propertys assessed valuation at the time of plan approval. ( 33670, subds. (a), (b).) This is commonly known a tax increment financing. A plan may provide for the agency to acquire real property by purchase or condemnation and to issue bonds. ( 33341, 33342.)

The redevelopment agency must consult with the planning commission and the project area committee, if a project area committee exists within the project area, in preparing the redevelopment plan. ( 33330, 33346, 33347.5.) If the plan provides for tax increment financing, the agency must prepare and send to each affected taxing entity a preliminary report containing certain required information, including an assessment of the economic feasibility of the project.[6] ( 33344.5.) The agency then must conduct a public hearing on the plan before approving the plan. ( 33348, 33355.)

A redevelopment agency submitting a redevelopment plan to the legislative body for its adoption must prepare a report for the legislative body. The report must state, among other things, The proposed method of financing the redevelopment of the project area in sufficient detail so that the legislative body may determine the economic feasibility of the plan.[7] ( 33352, subd. (e).)

The city council or other legislative body of the community must conduct a public hearing on a redevelopment plan submitted by a redevelopment agency. ( 33360, 33007.) The legislative body then may adopt a redevelopment plan by ordinance. ( 33365.) The ordinance must include certain findings, including a finding that [t]he adoption and carrying out of the redevelopment plan is economically sound and feasible.[8] ( 33367, subd. (d)(3).)

The legislative body may amend a redevelopment plan by ordinance upon the recommendation of the redevelopment agency. ( 33450.) Such a recommendation may include a change in the boundaries of the project area to add land or to exclude land from the project area. ( 33450.) The agency must hold a public hearing on a proposed amendment before it recommends the amendment ( 33451), must submit any substantial changes that it recommends to the planning commission for its report and recommendation ( 33453), and the legislative body must hold a public hearing before adopting an amendment. ( 33454.) Moreover, if the agency proposes to amend a plan that does not utilize tax increment financing by adding a provision for such financing, the agency shall follow the same procedure and the legislative body is subject to the same restrictions as provided for in this article for the adoption of a plan. ( 33354.5.) The same is true if the agency proposes to amend a plan that utilizes tax increment financing by adding new territory to the project area, increasing the limit on the total amount of tax increment funds to be allocated to the agency or the time limit to establish indebtedness, lengthening the duration of the plan, merging project areas, or adding significant capital improvement projects. ( 33354.6, subd. (a).) Section 33457.1 states further that [t]o the extent warranted by the amendment, the ordinance by the legislative body adopting the amendment must contain the findings required by section 33367 upon the adoption of a redevelopment plan, and the reports and information required by section 33352 must be prepared and made available to the public before the hearing on the amendment.[9]

2. The City Council Is Not Required to Reevaluate the Economic Feasibility

of the Redevelopment Plan in Light of Changed Circumstances

The county contends the agencys inability to obtain tax increment funding from the transferred property as a result of our prior opinion compels the conclusion that the redevelopment plan is no longer economically feasible. The county challenges the city councils finding made in May 2002 that the adoption and carrying out of the redevelopment plan was economically feasible, arguing that there is no substantial evidence in the administrative record to support that finding. The county does not challenge the sufficiency of the evidence in existence at the time of the city councils finding. Instead, the county argues that the subsequent occurrence of our partial invalidation of the plan and new evidence based on that development--the Moran declaration--render the city councils prior finding of economic feasibility unsupported. The county argues that the administrative record should be augmented to include the Moran declaration.

Section 33367 states, in relevant part, The ordinance [adopting a redevelopment plan] shall contain all of the following: [] . . . [] (d) The findings and determinations of the legislative body that: [] . . . [] (3) The adoption and carrying out of the redevelopment plan is economically sound and feasible. We construe this requirement that the legislative body make a finding on economic feasibility at a particular time to mean that the finding must be based on the circumstances then in existence and projections reasonably based on those circumstances. The county does not explain how it could be any other way. The county does not argue that the city council should have anticipated that it would be unable to obtain tax increment funds from the transferred property and should have determined the economic feasibility of the plan without those funds.[10] Moreover, the county does not explain how the language of section 33367 could be construed to require the city council to make a finding based on a future occurrence that the city council reasonably did not anticipate. We conclude that the county has shown no error in the finding by the city council.[11]

The countys argument for review of the city councils finding of economic feasibility effectively is an argument that a new finding is required in light of the changed circumstances and that the evidence cannot support such a new finding. Yet the county cites, and we are aware of, no statutory requirement that the legislative body must make a new finding of economic feasibility in these circumstances. The Community Redevelopment Law requires a redevelopment agency to follow certain procedures and prepare a report to the legislative body in some circumstances if the agency proposes to amend a redevelopment plan, as we have stated. The Community Redevelopment Law also requires a legislative body adopting a proposed amendment to follow certain procedures and make the findings described in section 33367, including a finding of economic feasibility, if warranted by the proposed amendment. ( 33457.1.) These requirements were designed to inform and restrict a redevelopment agency proposing an amendment and a legislative body considering a proposed amendment, and to ensure public participation through the hearings required before a legislative body can adopt an amendment. These requirements, however, by their express terms, apply only if a redevelopment agency proposes and a legislative body adopts a plan amendment. The Community Redevelopment Law imposes no requirements on a redevelopment agency or a legislative body when a court imposes restrictions on or invalidates part of a redevelopment plan. In those circumstances, when the restrictions are required by law, the redevelopment agency is not required to evaluate the effect of those restrictions on the plan or to prepare a new report, and the legislative body is not required to make any new findings.

Accordingly, absent any statutory requirement that the city council must make a new finding of economic feasibility in these circumstances, and absent any citation of legal authority for this court to impose such a requirement on the city council, we conclude that a new finding of economic feasibility is not required in light of the changed circumstances.

We do not mean to suggest that by partially invalidating a redevelopment plan a court effectively can amend a redevelopment plan without regard to the economic feasibility of the plan as amended. Rather, a court must consider the economic feasibility of the plan in determining whether the invalid portions are severable from the remainder. We concluded in our prior opinion that the plan was partially invalid only after determining that the invalid portions were grammatically, functionally, and volitionally severable from the remainder. (County of Los Angeles v. Community Redevelopment Agency of City of Los Angeles, supra, B169633 [at pp. 25-29].) We concluded that the invalid portions were functionally severable because the agency can implement the plan by relying on other revenues, and concluded that the invalid portions were volitionally severable because the restrictions presumably will not impair the agencys ability to promote redevelopment in the project area to such a degree as to suggest that the city council would rather forego redevelopment altogether than proceed under the plan as limited. (Id. at pp. 28-29.) The appropriate opportunity for the county to argue that the plan as limited by partial invalidation would not be economically feasible was in its appellate briefs in the prior appeal or in a petition for rehearing in connection with the issue of severability.

3. The Redevelopment Agency Is Not Required to Prepare New Reports

Reevaluating the Plan

The county cites, and we are aware of, no statutory requirement that a redevelopment agency must prepare a preliminary report under section 33344.5 or a report under section 33352 reevaluating a redevelopment plan after a court imposes restrictions on or invalidates part of the plan, or that a redevelopment agency in these circumstances must reevaluate its proposed projects and five-year implementation plan and hold a new public hearing. Moreover, the county has not shown either that the reasons for imposing those requirements on a redevelopment agency proposing a plan amendment to the legislative body also apply when a court concludes that the partial invalidation of a plan is required by law, or that we have legal authority to impose those requirements on the redevelopment agency in these circumstances. We therefore reject the countys contention to that effect. Moreover, the statement in our prior opinion that the ultimate decision whether to implement the redevelopment plans as limited or properly amend or revoke the plans is for the city council to decide (County of Los Angeles v. Community Redevelopment Agency of City of Los Angeles, supra, B169633 [at p. 29]) was not a direction to the city council, but merely recognized the city councils discretion to act in the manner that it deems appropriate, in accordance with the law, in light of our opinion.

In light of our conclusions, we need not address the countys other contentions.

4. Bernardi, Jarvis, and Coupal Have Shown No Prejudicial Error Resulting

from the Omission of Jarvis and Coupal from the Judgment

Bernardi, Jarvis, and Coupal contend they each should be parties to the judgment, but they do not explain how they are prejudiced by the omission of Jarvis and Coupal from the judgment. A validation action is a proceeding in rem and is brought against all persons interested in the matter specified. (Code Civ. Proc.,  860,[12]861.1.) The judgment in a validation action is forever binding and conclusive, as to all matters therein adjudicated or which at that time could have been adjudicated, against the agency and against all other persons. (Id., 870, subd. (a).) The judgment is binding against the redevelopment agency and all persons, named or unnamed in the judgment. We conclude that the failure to name Jarvis and Coupal as parties to the judgment did not prejudice their interests, or the interests of any person, with respect to the matters adjudicated in the judgment. Moreover, Bernardi, Jarvis, and Coupal do not argue that the omission of Jarvis and Coupal from the judgment prejudiced them with respect to the award of attorney fees and costs payable directly to their attorneys, and it is not apparent that any prejudice resulted in that regard. We conclude that they have shown no prejudicial error with respect to the omission of Jarvis and Coupal from the judgment. We therefore need not address the parties arguments regarding the validity of the assignment and standing.

5. Bernardi, Jarvis, and Coupal Have Shown No Prejudicial Error with

Respect to the Denial of Bernardis Motion for an Interim Fee Award

Code of Civil Procedure section 1021.5 provides for an award of attorney fees to a successful party against an opposing party in an action that has resulted in the enforcement of an important right affecting the public interest if the action has conferred a significant benefit to the general public or a large class of persons and the necessity and financial burden of private enforcement make the award appropriate. (Ibid.; Schmier v. Supreme Court (2002) 96 Cal.App.4th 873, 877.) A party need not obtain a favorable judgment to be considered successful under the statute. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1290-1291.) Rather, a party is considered successful if, due to the partys efforts, the litigation vindicated an important right. (Id. at pp. 1291‑1292.) An interim award of attorney fees may be appropriate in some circumstances. (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 428; Sundance v. Municipal Court (1987) 192 Cal.App.3d 268, 271.)

The court denied Bernardis motion for an interim award of $15,000 in attorney fees under Code of Civil Procedure section 1021.5 at a hearing on September 15, 2005, and entered a signed order denying the motion on October 4, 2005. The court entered a judgment awarding fees in an unspecified amount in favor of Bernardi on May 4, 2006, and determined that the amount of the award was $22,980 in an order filed on September 18, 2006. Bernardi, Jarvis, and Coupal contend the denial of Bernardis motion for interim fees was error. Although the argument in their opening brief does not explain how they were prejudiced by the delay in awarding those fees, in the conclusion of their opening brief they request interest on all reasonable fees be awarded from the time the motion was denied on September 15, 2005. They do not specify the amount of interest that they seek to recover.

We agree with the argument by Bernardi, Jarvis, and Coupal that the trial court misconstrued our permissive statement, The superior court can reconsider the question of Bernardis entitlement to attorney fees in each case following entry of a judgment on remand (County of Los Angeles v. Community Redevelopment Agency of City of Los Angeles, supra, B169633 [at p. 31]), as a direction to refrain from awarding fees until after the entry of judgment. But we conclude that they have not shown prejudicial error, as we shall explain.

The duration of the litigation and delay in recovery of attorney fees are appropriate considerations for a court determining the reasonable amount of a fee award. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 583-584.) Absent a showing that the court failed to consider those factors, we presume that it did. (Ketchum v. Moses, supra, 24 Cal.4th at p. 1140.) Neither the amount of fees at issue nor the duration of the delay is so extraordinary as to suggest that Bernardi, Jarvis, and Coupal suffered any irreparable injury as a result of the denial of the motion for interim fees, and they do not maintain that they did. In light of the postjudgment award of attorney fees, we conclude that the delay in awarding the fees for which they had sought an interim award until after the entry of judgment caused them no prejudice and that they have shown no prejudicial error.

6. Bernardi, Jarvis, and Coupal Have Shown No Error with Respect to

the Postjudgment Award of Attorney Fees

A trial court has broad discretion to determine the amount of a reasonable attorney fee award under Code of Civil Procedure section 1021.5. The determination ordinarily should be based on the number of hours reasonably expended multiplied by a reasonable hourly rate, and the courts consideration of the nature of the litigation, its difficulty, the amount involved, the skill and effort employed, the degree of success or failure, and other factors. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095‑1096.) The experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong[] meaning that it abused its discretion. [Citations.] (Id. at p. 1095.)

Bernardi, Jarvis, and Coupal cite no authority to support the proposition that a trial court must explain the reasons for its determination or that an award that approximates the amount requested indicates that the trial court failed to exercise its discretion. To infer from those circumstances alone that the court failed to exercise its discretion would undermine the trial courts broad discretion to determine a reasonable amount of fees. They have not shown that the amount awarded is clearly unreasonable. Accordingly, we conclude that they have not shown error.

DISPOSITION

The judgment and postjudgment order awarding attorney fees are affirmed. The redevelopment agency and the city are entitled to recover their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, J.

We Concur:

KLEIN, P. J.

ALDRICH, J.

Publication courtesy of California pro bono legal advice.

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[1] We will refer to the consolidated actions as the City Center case.

[2] The court requested a joint statement by counsel for all parties explaining what issues remained to be tried as to Bernardi. In the joint statement, the redevelopment agency and the city stated their position that our opinion resolved all issues concerning the effect of the consent judgment and that Bernardi had raised no other issues and therefore should not participate in the trial, but that he should participate in any settlement. Bernardi stated that he need not participate in the trial unless issues pertaining to the consent judgment arose, but that he could participate in any settlement. The county stated that it took no position on the matter. Bernardi, Jarvis, and Coupal did not file a trial brief. Counsel for Bernardi appeared at trial in December 2005, but presented no argument.

[3] Bernardis personal representative or successor in interest apparently did not move to be substituted as a party in the place of Bernardi. (See Code Civ. Proc.,  377.31.)

[4] We regard the tentative statement of decision as a nonbinding tentative decision pursuant to former California Rules of Court, rule 232(a). The tentative decision stated that if any party requested a statement of decision pursuant to former rule 232, the defendants must prepare the statement of decision and a proposed judgment. No party requested a statement of decision.

[5] All further statutory references are to the Health and Safety Code unless stated otherwise.

[6] The preliminary report by a redevelopment agency must contain (1) the reasons for selection of the project area; (2) a description of the areas existing physical and economic conditions; (3) a description of the project area that is sufficiently detailed for a determination as to whether the area is predominantly urbanized and includes certain specified information; (4) A preliminary assessment of the proposed method of financing the redevelopment of the project area, including an assessment of the economic feasibility of the project and the reasons for including a provision for the division of taxes pursuant to Section 33670 in the redevelopment plan; (5) a description of the specific projects proposed by the agency; and (6) a description of how those specific projects will improve or alleviate the existing physical and economic conditions of the project area. ( 33344.5.)

[7] The report by a redevelopment agency must contain (1) the reasons for selection of the project area, a description of the specific projects proposed by the agency, and a description of how those projects will improve or alleviate the areas existing blight; (2) a description of the existing physical and economic conditions that cause the area to be blighted; (3) an implementation plan, including a five-year program of actions and expenditures; (4) an explanation why private enterprise acting alone or the legislative body using financing alternatives other than tax increment financing cannot reasonably be expected to eliminate blight and redevelop the area; (5) The proposed method of financing the redevelopment of the project area in sufficient detail so that the legislative body may determine the economic feasibility of the plan; (6) a method or plan to relocate any families and persons displaced from the project area, in compliance with section 33411.1; (7) an analysis of the preliminary plan prepared by the planning commission ( 33324, 33325); (8) the report and recommendations of the planning commission ( 33346); (9) a summary of the record of all information presented by or to the project area committee ( 33387); (10) a report on the conformity of certain proposed actions with the general plan (Gov. Code,  65402); (11) an environmental impact report, if the project may have a significant effect on the environment (Pub. Resources Code,  21151); (12) a report by the county officials responsible for tax allocation concerning the amount of income to be derived by each taxing agency based on the base year assessment role ( 33328); (13) if the project area contains low- or moderate-income housing, a neighborhood impact report that describes in detail the impacts on residents in terms of relocation, traffic circulation, environmental quality, community facilities and services, school population and quality of education, property assessments and taxes, and other matters; and (14) an analysis of the report by the county officials responsible for tax allocation, and a summary of the agencys consultation with each affected taxing entity and the agencys responses to any written objections or concerns by the affected taxing entities. ( 33352.)

[8] The required findings are that (1) the project area is blighted; (2) the plan would redevelop the area in accordance with the Community Redevelopment Law; (3) [t]he adoption and carrying out of the redevelopment plan is economically sound and feasible; (4) the plan is consistent with the applicable general plan; (5) the carrying out of the plan would promote the public peace, health, safety, and welfare of the community; (6) any real property condemnation provided for in the plan is necessary to the execution of the plan, and adequate provision has been made for payment of the property to be acquired; (7) the agency has a feasible method or plan to relocate any families and persons displaced from the project area; (8) decent, safe, and sanitary dwellings will be available to the displaced families and will be reasonably accessible to their places of employment; (9) all noncontinguous areas of the project area are either blighted or necessary for effective redevelopment and are not included for the purpose of tax increment financing without other substantial justification for their inclusion; (10) the inclusion of any lands, buildings, or improvements that are not detrimental to the public health, safety, or welfare is necessary for effective redevelopment of the area of which they are a part, and any area included is necessary for effective redevelopment and is not included for the purpose of tax increment financing without other substantial justification; (11) private enterprise acting alone without the assistance of the agency is not reasonably expected to eliminate blight and redevelop the project area; (12) the project area is predominantly urbanized; (13) the limitations on the plans duration and on the number of dollars to be allocated to the agency are reasonably related to the proposed projects to be implemented in the project area and to the agencys ability to eliminate blight in the project area; and (14) the implementation of the plan will improve or alleviate blight in the project area as described in the report to the legislative body prepared pursuant to section 33352. ( 33367, subd. (d).)

[9] To the extent warranted by a proposed amendment to a redevelopment plan, (1) the ordinance adopting an amendment to a redevelopment plan shall contain the findings required by Section 33367 and (2) the reports and information required by Section 33352 shall be prepared and made available to the public prior to the hearing on such amendment. ( 33457.1)

[10] In the countys argument regarding the exhaustion of administrative remedies, the county apparently concedes that the city council need not have anticipated the inability to obtain tax increment funds from the transferred property. The county argues that it need not have objected to the adoption of the redevelopment plan based on the lack of economic feasibility because it was only required to raise objections to the plan then under consideration and was not required to divine our partial invalidation of the plan.

[11] Moreover, the county as appellant bears the responsibility to ensure that an adequate record to demonstrate error is presented to this court on appeal. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) Yet, the county has failed to present the administrative record. Absent an administrative record for this court to review, the county cannot satisfy its burden to show that there is no substantial evidence in the administrative record to support the city councils finding. All intendments and presumptions are indulged to support [the judgment] on matters as to which the record is silent, and error must be affirmatively shown.   (Id. at p. 1140.)

[12] A public agency may upon the existence of any matter which under any other law is authorized to be determined pursuant to this chapter, and for 60 days thereafter, bring an action in the superior court of the county in which the principal office of the public agency is located to determine the validity of such matter. The action shall be in the nature of a proceeding in rem. (Code Civ. Proc.,  860.) Health and Safety Code section 33501, subdivision (a) states that an action to determine the validity of a redevelopment plan may be brought pursuant to Code of Civil Procedure section 860.