GH Capital v. City of Los Angeles







Filed 9/26/11 GH Capital v. City of Los Angeles CA2/1





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

GH CAPITAL, LLC, Plaintiff, Appellant and Respondent, v. CITY OF LOS ANGELES et al., Defendants and Respondents, BRENTWOOD COMMUNITY COUNCIL, Intervenor, Respondent and Appellant.

B221987 (Los Angeles County Super. Ct. No. BS115661)

APPEALS from an order of the Superior Court of Los Angeles County. David Yaffe, Judge. Affirmed.
Freedman & Taitelman, Michael A. Taitelman and Gerald L. Greengard for Plaintiff, Appellant and Respondent.
Bird, Marella, Boxer, Wolpert, Nessim, Drooks & Lincenberg and Thomas R. Freemen for Intervenor, Respondent and Appellant.
No appearance for Defendants and Respondents.

Plaintiff GH Capital, LLC (GHC) filed a petition for writ of mandate seeking a court order requiring the City of Los Angeles to set aside an order of the Department of Building and Safety requiring GHC to demolish an exterior lighting system it installed at the Hotel Angeleno, a 16-story building in Brentwood. Defendant City of Los Angeles (City) and intervenor Brentwood Community Council (BCC) opposed the petition. The trial court denied GHC’s writ petition.
GHC appeals from a post-judgment order awarding attorney fees to BCC under Code of Civil Procedure section 1021.5,[1] the private attorney general statute. GHC contends that BCC cannot establish the statutory requirements for an award of attorney fees under section 1021.5. Specifically, GHC asserts that, in opposing GHC’s petition for writ of mandate, BCC was not a successful party, did not enforce an important right affecting the public interest, did not confer a significant benefit on a large class of persons and did not incur a financial burden disproportionate to its stake in the litigation, which would justify an award of fees. We find that the trial court did not abuse its discretion in awarding attorney fees to BCC.
BCC cross-appeals from the same order. BCC contends that the trial court abused its discretion in declining to award BCC a requested fee enhancement, in addition to the lodestar amount, to fully compensate its attorneys for their contingency representation in this matter. We disagree and affirm the attorney fees award.

BACKGROUND

In 2002, GHC purchased a “Holiday Inn” hotel and renamed it “Hotel Angeleno” (the hotel). The hotel is a 16-story, circular, high-rise building located in the City’s Brentwood area, adjacent to the I-405 Freeway and Sunset Boulevard.
The hotel was built in the early 1970s in an R5 zone, which “permitted hotels by right.” The “incidental businesses” in the hotel (restaurant, cocktail lounge) also were permitted by right so long as they served only hotel guests and not the general public. “[N]o exterior signs identifying such businesses were permitted.”
Prior Zoning Actions Related to Lighting, Signage and Intensity of Use
In 1972, the City’s Zoning Administrator denied Holiday Inn’s application for a variance to open the restaurant and cocktail lounge to the general public. The Zoning Administrator cited “detrimental effects by the creation of additional traffic congestion in a residential area,” and noted that there had been “an effort to reduce the intensity of land use in this area,” as evidenced by “[t]he recent zoning rollbacks on adjoining properties.” The Zoning Administrator granted Holiday Inn’s application for a variance to provide live entertainment in the cocktail lounge for hotel guests.
In 1981, the Zoning Administrator denied Holiday Inn’s variance request to install two illuminated signs, measuring 12 feet by 55 feet, at the roofline of the 16-story structure. The Zoning Administrator heard opposition to the variance request from “the Bel Air Association, the Brentwood Homeowners Association, the Westwood Property Owners Association, the Residential Neighbors of Brentwood, the Brentwood-Glen Homeowners Association and numerous involved property owners.” The Zoning Administrator concluded: “The granting of the variance would be materially detrimental to the public welfare and injurious to the other properties in the same zone and vicinity. The visual prominence of the proposed signs and their illumination during night-time hours would have an adverse effect on adjacent properties and improvements which is almost incalculable. Aesthetics of the area and property values would also be affected and the granting of the subject request would set a precedent of long-standing consequences which would not be in the best interests of the public welfare.”
In 1983, the hotel site was down-zoned to R4. Hotels are not permitted by right in an R4 zone, except under limited circumstances not applicable here. The hotel therefore became a “deemed approved conditional use” and the restaurant and cocktail lounge became “legal nonconforming uses.”
In or around October 1985, Holiday Inn installed a “halo” of lights near the top of the structure without seeking prior approval from the Zoning Administrator. The Zoning Administrator received letters of opposition from individual residents and homeowners associations.
Holiday Inn subsequently sought “to permit the continued maintenance of musical entertainment” in the cocktail lounge. The Zoning Administrator denied Holiday Inn’s application for an extension of its permit. In or about August 1986, the Board of Zoning Appeals concluded that the Zoning Administrator erred in denying Holiday’s Inn’s request. In granting Holiday Inn’s appeal, the Board of Zoning Appeals imposed conditions on the hotel’s use, including “[t]hat the existing horizontal lighting abutting the 16th floor shall be extinguished except that such lighting shall be permitted during the last three weeks of the month of December of each year.” Another condition stated: “That the authorized use shall be conducted at all times with due regard for the character of the surrounding district, and the right is reserved to the Zoning Administrator to impose additional corrective conditions, if, in his opinion, such conditions are proven necessary for the protection of persons in the neighborhood or occupants of adjacent property.” The City Council denied Holiday Inn’s subsequent appeal and affirmed the conditions.
In 1994, the Zoning Administrator denied Holiday Inn’s request for a variance to install two illuminated rooftop signs, measuring 424 square feet and reading “Holiday Inn.” The Zoning Administrator concluded: “The proposed addition of the illuminated parapet-mounted signs (and the additional potential patronage generated by general advertising) would have demonstrably negative effects upon surrounding properties. As was shown at the public hearing, the proposed signs would be very visible from many adjacent properties. Further, since the hotel is located adjacent to a major transportation corridor (the San Diego Freeway) with acknowledged scenic amenities, the proposed signs would adversely impact the views of a large number of members of the general public. [¶] In addition, the area east of the San Diego Freeway/Sepulveda is developed with single-family residences; the area west of the hotel is developed with single-family residences and multi-residential uses. Commercial signage and general advertising would be out of character with surrounding development. The intent of the prohibition on exterior signage and on general advertising is to limit the obvious commercial aspects of property development.”
GHC’s Variance Request and Subsequent Installation of Exterior Lighting System
After GHC acquired the hotel in 2002, it sought to open the hotel restaurant and cocktail lounge to the general public. In or about December 2004, GHC filed an application for a variance to “permit public use of a restaurant and lounge in the R4 Zone.” In a Negative Declaration under the California Environmental Quality Act, the City concluded “that no significant impacts are apparent which might result from this project’s implementation” and that the project would have no impact on “aesthetics.”
BCC, the intervenor in this action, supported GHC’s variance request with certain conditions, including that “GHC will invite community comments on its plans for signage, exterior lighting, exterior colors, and landscaping once such plans are available for review.” “BCC is the broadest-based community organization in the Brentwood neighborhood of Los Angeles . . . with a membership representing the Brentwood community’s homeowner associations, business organizations, youth groups, schools, religious groups, volunteer service groups, multi-family residential dwellers, public safety and environmental organizations.” “BCC was established to provide Brentwood stakeholders with direct input into governmental operations that directly impact the quality of life and property in Brentwood.”
The Zoning Administrator approved GHC’s application for a variance to permit the restaurant and cocktail lounge to serve the general public. The Zoning Administrator imposed terms and conditions on the hotel’s use, including that, “The authorized use shall be conducted at all times with due regard for the character of the surrounding district, and the right is reserved to the Zoning Administrator to impose additional corrective Conditions, if, in the Administrator’s opinion, such Conditions are proven necessary for the protection of persons in the neighborhood or occupants of adjacent property” (Condition No. 3).
GHC installed an exterior lighting system at the hotel without inviting community comment, as it had promised BCC it would do, and without seeking approval from the Zoning Administrator. Instead, GHC applied for electrical permits from the Los Angeles Department of Building and Safety (LADBS). LADBS issued permits for GHC to install “a horizontal light band delineating the top edge (roof line) and bottom edge (floor line) of the 16th floor and spot lights at the bottom of the 2nd floor which illuminate the building upward and periodically change in color.”
Building and Safety Order
After the hotel activated its new exterior lighting system, BCC complained to the Zoning Administrator “about unauthorized night colored lighting on the hotel which . . . illuminated their residences, created glare and visual blight . . . and was incompatible with their neighborhood.” In response to BCC’s complaint, the Zoning Administrator requested that LADBS investigate the matter, in light of prior zoning determinations and conditions placed on the hotel’s use, including restrictions on signage and lighting.
On or about September 6, 2006, LADBS issued an order requiring that GHC: “Demolish all of the lighting installed under the permits listed above, including all lighting other than the 16th floor lighting installed under the original construction permits. The existing horizontal lighting abutting the 16th floor lighting may remain and must be completely extinguished except during the last 3-weeks of the month of December each year.” GHC appealed and the Department of Building and Safety upheld the order (hereafter referred to as the Building and Safety Order).
GHC then appealed to the Department of City Planning. GHC described the new exterior lighting as “a complex, state-of-the-art lighting system, designed and installed by [an] award winning lighting designer . . . .” GHC argued that it was not required to seek discretionary approval from the City before installation of the lighting system.


In early 2008, after a public hearing, the Associate Zoning Administrator assigned to the case prepared a 16-page written decision, denying GHC’s appeal.[2] Under the heading, “Lighting Program as Message,” the decision states in part: “A recent Zoning Administrator’s drive-by of the hotel site provided a unique and educating visual experience. According to the representative of the hotel, the intensity of the lights and their configuration since the issuance of Order to Comply had been lessened and modified and the vibrant multi-colored presentation had been replaced by less intensive lighting. Nevertheless, on the evening of December 9, 2007, the Zoning Administrator experienced a light presentation of dramatic visual effect and out of character with this residentially zoned location. The purple lights ran up the entire vertical wall of the high rise circular shaped hotel structure. There was no mistaking the visual impact of this high rise beacon of light that visually confronts drivers on Sunset Boulevard and the San Diego Freeway (State Highway 405) after dark, as well as on neighboring residences. Unlike other multi-storied structures in the vicinity, such as adjacent hotels and condominiums, Getty Center, Skirball Center, American-Jewish University, and nearby schools and houses of worship, none are lighted to the same dramatic effect, extent and intensity as the Hotel Angeleno, which brightly beckons motorists and residents alike. [¶] The objective result of the Hotel’s night lighting program, both the prior multi-colored lighting and the post-Order to Comply mono-colored lighting program, is a lighting presentation which promotes the Hotel Angeleno and its accessory uses. . . .” The Zoning Administrator found that “the owner/appellant has created a de facto sign using the lighted and illuminated circular walls of the hotel structure to announce its presence and attract the attention of the motoring public.”
In conclusion, the decision states: “It is this Zoning Administrator’s opinion that the applicant should not use the shield of the electrical permits to mask what is the unauthorized introduction of a more intensive night exterior lighting program at this location than is permitted in the R4 Zone. The relevance of the intensification of the use of lighting is magnified by the absence of any Planning Department discretionary approval to allow the dramatic night lighting program instituted by the appellant, which caused the neighbors’ complaints and led to the subsequent issuance of the Order to Comply. Additionally, the inherent limitation of the legal nonconforming status of the use is restricted to what existed at the time of the zone change to the R4-1VL Zone. Any change in the mode and character of the use thereafter, i.e., construction of an attention getting lighting program[,] requires a new discretionary action and approval. . . .”
GHC’s Petition for Writ of Mandate
In July 2008, after the denial of its appeal to the West Los Angeles Area Planning Commission, GHC filed a petition for writ of mandate against the City of Los Angeles and its Department of Building and Safety, Department of City Planning and West Los Angeles Planning Commission (collectively, City). GHC sought a court order setting aside the City’s Building and Safety Order and a declaration of GHC’s “rights to modernize its lighting system pursuant to the Permits . . . previously issued to [GHC].” In February 2009, the City filed its answer to the petition for writ of mandate.
BCC did not immediately seek to intervene in the action. Then, in October 2008, BCC’s counsel “learned that GH[C]’s counsel was seeking to settle the dispute with the City in a manner inconsistent with the Order to Comply.” BCC’s counsel contacted the City Attorney’s Office and was informed that GHC and the City “were planning to meet in an effort to settle the case on terms that would allow GH[C] to continue using its multi-colored lighting system.” BCC’s counsel “expressed to [a deputy city attorney] the BCC’s position that the City cannot properly ‘settle’ the lawsuit in a manner that would undercut zoning determinations that were made through the mandatory public process established under municipal law.”
On April 6, 2009, BCC filed a motion for leave to intervene in the action “in defense of the City’s conduct in ordering the removal of the . . . lighting system.” BCC asserted that it had “taken the lead in opposing the improper lighting system on behalf of the Brentwood community since the lighting system was first unveiled. The BCC alerted the Zoning Administrator to the violation, located and presented the Zoning Administrator with the public records establishing the long history of Zoning Administration actions precluding such commercialized lighting and de facto signage, coordinated community opposition by assuring that the most adversely-impacted homeowner associations presented public testimony, including both its own member associations and adversely-affected residential groups in neighboring Bel Air and Westwood Hills, and retained legal counsel to rebut the specious claims of the developer’s hired lawyers.”
GHC opposed BCC’s motion to intervene, arguing that the City adequately represented its interest and those of its residents in upholding the Building and Safety Order, and that BCC did not have a direct and immediate interest in the outcome of the action. The City filed a notice of non-opposition to BCC’s motion. The trial court granted BCC’s motion to intervene.
Both the City and BCC filed briefs in opposition to GHC’s petition for writ of mandate. In its 15-page brief, the City emphasized the deferential standard of review and argued that GHC had not exhausted its administrative remedies. In its 30-page brief, BCC chronicled the history of zoning determinations related to the hotel and set forth the legal restrictions on GHC’s right to illuminate the hotel.
On June 22, 2009, after hearing oral argument by GHC, the City and BCC, the trial court denied the petition for writ of mandate. Quoting language from GHC’s opening brief, the court’s order stated the issue presented in the action as follows: “‘This case involves a very narrow question of law. Does the hotel’s exterior lighting violate any zoning laws or conditions of operation previously imposed‌’” The trial court concluded: “The answer to that question is yes. The hotel’s exterior lighting violates LAMC 12.24M because plans showing the exterior lighting were not submitted to and approved by the Zoning Administrator before the new lighting system was installed.”[3]
The trial court noted in its order that the zoning variance granted to GHC in 2005 authorizing it to open the hotel restaurant to the public “did not approve or even mention a new exterior lighting system.” The court pointed out that “Condition No. 3 to the variance reserved to the Zoning Administrator the authority ‘to impose additional corrective conditions, if, in the Administrator’s opinion, such conditions are proven necessary for the protection of persons in the neighborhood or occupants of adjacent property.’”
The trial court rejected GHC’s position that the lighting system was approved by the electrical permits issued to GHC by LADBS. The court explained: “The Department of Building & Safety issues electrical permits on a ministerial basis if the electrical plans show that the electrical installation will comply with building and safety laws. The Department of Building & Safety has no jurisdiction over zoning regulations and no authority to modify zoning variances granted by the Department of Planning.” The court also rejected GHC’s other contentions, including its argument that “its lighting system to illuminate the building is protected by the free speech provisions of the federal and state constitutions.”
The trial court found that substantial evidence in the administrative record supported the administrative decision, including “evidence that, in addition to the sixteenth floor horizontal lighting, the new vertical lighting installed on the second floor of the hotel that shines upward and illuminates the hotel building itself, is more intense and is multicolored, and therefore overburdens the grandfathered nonconforming use.” The court ruled that the “vertical lighting is prohibited to the extent, and only to the extent, that it exceeds, in intensity, color, or otherwise, the prior vertical lighting that it replaced.”
GHC filed a motion for reconsideration of the order denying its petition for writ of mandate. GHC argued that the trial court’s ruling that the vertical lighting is “prohibited ‘to the extent, and only to the extent, that it exceeds, in intensity, color, or otherwise, the prior vertical lighting that it replaced,’” is “in direct conflict with the City’s decision to revoke the electrical permits obtained by [GHC] and require that all exterior lighting installed under said permits be demolished and removed.”
BCC and the City opposed the motion for reconsideration. BCC argued that the trial court’s ruling “made clear that GH[C] should have and now must seek permission from the ZA [Zoning Administrator] to install and maintain vertical lighting and that the ZA has discretion to condition the use of such lighting as necessary to protect the surrounding neighbors and properties.” BCC suggested that the court delete from its order the language that GHC claimed was in conflict with the Building and Safety Order.
The trial court denied GHC’s motion for reconsideration and declined to modify its order as suggested by BCC. On August 10, 2009, the court entered judgment denying GHC’s petition for writ of mandate.
BCC’s Motion for Attorney Fees
On October 8, 2009, BCC moved for an award of attorney fees under section 1021.5. BCC sought $181,900 in attorney fees incurred in the administrative action (98.2 hours) and the court action (265.6 hours), calculated at $500 per hour, plus $30,000 for legal services related to the motion for attorney fees (50 hours). BCC also requested a 40 percent fee enhancement ($72,760, calculated as a percentage of fees incurred that were unrelated to the motion for attorney fees) based on “(1) the contingent nature of counsel’s compensation; and (2) the complexity of issues, caused not only by the inherent complexity of the case, but by the aggressive manner in which GH[C]’s counsel defended its lighting system, at both the administrative and judicial phases, in both formal legal arguments and attempts to achieve a settlement outside the public process.” BCC sought a total award of $284,660.
In connection with its motion, BCC submitted evidence that the law firm “Bird Marella was retained by the BCC to represent its interests in a dispute with the operators of the Hotel Angeleno concerning exterior lighting illuminating and emanating from the hotel structure. Bird Marella agreed to represent the BCC in this matter without payment of hourly fees directly from the BCC, which lacked the funds to pay such fees, but on the condition that the firm would have the opportunity to seek an award of attorney fees under Section 1021.5 of the Code of Civil Procedure.”
GHC opposed BCC’s motion for attorney fees, raising the same grounds it asserts on appeal—that BCC is not entitled to attorney fees because it cannot satisfy the requirements of section 1021.5. GHC also opposed the motion on grounds that the attorney fees sought were “excessive.”[4]
On November 30, 2009, after hearing oral argument, the trial court granted BCC’s motion in part, awarding BCC a total of $125,000 in attorney fees. The trial court made the following findings of fact and conclusions of law in its order:
“1. Intervenor is a prevailing party in this proceeding. It prevailed in persuading this court to deny the hotel owner a writ of mandate that would have commanded the Los Angeles Department of Building & Safety (DBS) to annul an order that it issued to the hotel owner requiring it to demolish lighting installed under three electrical permits issued by DBS. The demolition order is still in full force and effect, except that exterior vertical lighting installed pursuant to those electrical permits is prohibited only to the extent that it exceeds, in intensity, color, or some other material respect, the exterior vertical lighting that was previously permitted by the city zoning authorities.
“2. The judgment denying the petition confers a significant benefit upon a large class of persons: the homeowners and tenants who live in the area around the hotel, because it prevents the hotel owner from maintaining the new lighting system without seeking the approval of the city zoning authorities.
“3. The necessity and financial burden of private enforcement by intervenor make the award of attorney fees appropriate because intervenor had a reasonable basis to be concerned that the City would not adequately protect the interests of the tenants and property owners and that it would, to minimize the expense to the City, settle this case on a basis that would not adequately protect their interests.
“4. The final judgment will not defray the expenses borne by intervenor to participate in this proceeding if attorney fees are not allowed. The expense incurred by intervenor in prosecuting this proceeding is out of proportion economically to the benefit that will be incurred by intervenor.
“5. The amount of attorney fees claimed by intervenor is excessive for a proceeding that does not involve a trial or any discovery, but amounts to participation in one administrative hearing and three or four motion hearings before the court. Reasonable attorney fees incurred by intervenor in this proceeding, and in the administrative proceeding that [preceded] it, are in the sum of $125,000.00.”

DISCUSSION

GHC contends that BCC is not entitled to an award of attorney fees under section 1021.5 because BCC cannot satisfy the statutory requirements for such an award. In its cross-appeal, BCC contends that the trial court erred in refusing to award BCC a fee enhancement, on top of the lodestar amount, to compensate BCC for the risks inherent in contingency representation.
Standard of Review
Ordinarily, we review attorney fee awards under section 1021.5 for abuse of discretion. (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175.) Where the determination is based on statutory construction and a question of law, however, we review the decision de novo. (Ibid.; McGuigan v. City of San Diego (2010) 183 Cal.App.4th 610, 623 [“Where the material facts are undisputed, and the question is how to apply statutory language to a given factual and procedural context, the reviewing court applies a de novo standard of review to the legal determinations made by the trial court”].)
We disagree with GHC’s contention that the proper standard of review here is de novo. There are material factual disputes in this case. Our determination whether BCC has met the statutory criteria for an award of fees involves mixed questions of law and fact, with factual issues predominating. Our review is not limited to pure questions of law based on undisputed facts. Thus, the deferential abuse of discretion standard is applicable. (Connerly v. State Personnel Bd., supra, 37 Cal.4th at p. 1175.)
GHC’s Appeal
Section 1021.5 provides in 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 . . . 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.” Subsection (c) is inapplicable because there was no monetary recovery in this case.
“T]he Legislature adopted section 1021.5 as a codification of the ‘private attorney general’ attorney fee doctrine that had been developed in numerous prior judicial decisions. . . . [T]he fundamental objective of the private attorney general doctrine of attorney fees is “‘“to encourage suits effectuating a strong [public] policy by awarding substantial attorney’s fees . . . to those who successfully bring [or oppose] such suits and thereby bring about benefits to a broad class of citizens.”’ [Citation.] The doctrine rests upon the recognition that privately initiated [or defended] lawsuits are often essential to the effectuation of the fundamental public policies embodied in constitutional or statutory provisions, and that, without some mechanism authorizing the award of attorney fees, private actions to enforce such important public policies will as a practical matter frequently be infeasible. [Citations.]” (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 933.)
1. Successful party
GHC contends that BCC is not a “successful party” within the meaning of section 1021.5 because it did not achieve its objectives in this litigation. This contention is without merit.
Under section 1021.5, “A ‘successful party’ means a ‘prevailing’ party.” (Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173, 178.) A party who “‘“‘succeed[s] on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit”’”’ may be considered a prevailing party “for attorney’s fees purposes.” (Ibid.) “The significance of the . . . issue was a matter for the trial court’s judgment . . . .” (Ibid.)
GHC sought “a writ of mandate commanding the City to set aside, annul and vacate [the Building and Safety] Order.” BCC intervened and defended that order. As the trial court noted in declaring BCC a prevailing party: “That demolition order is still in full force and effect, except that exterior vertical lighting installed pursuant to those electrical permits is prohibited only to the extent that it exceeds, in intensity, color, or some other material respect, the exterior vertical lighting that was previously permitted by the city zoning authorities.”
The fact that GHC is permitted to maintain some exterior lighting at its hotel that does not exceed lighting previously permitted does not mean that GHC is the prevailing or successful party in this litigation. The court rejected GHC’s position that it was entitled to intensify the use of exterior lighting without approval from the Zoning Administrator. What GHC wanted—and what BCC sought to prevent—was the intensification of the exterior lighting. BCC prevailed. BCC is a successful party within the meaning of section 1021.5.
2. Important right affecting the public interest
Before addressing the merits of this issue, GHC contends that we must reverse the matter because the trial court did not articulate in its minute order an important right affecting the public interest which was enforced in this action. GHC asserts that we must remand the matter for the trial court to make a factual finding on this element. We reject this contention.
A trial court is “not required to issue a statement of decision with regard to [a] fee award,” and GHC “did not request a statement of decision with specific findings.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140.) “‘“All intendments and presumptions are indulged to support [the order] on matters as to which the record is silent, and error must be affirmatively shown.”’ [Citation.] (Ibid.)
GHC’s reliance on Woodland Hills Residents Assn., Inc. v. City Council, supra, 23 Cal.3d 917, 938, and Save El Toro Assn. v. Days (1979) 98 Cal.App.3d 544, 554 in support of its position that the matter must be remanded for a factual finding on this issue is misplaced. In those cases, the trial courts evaluated the motions for attorney fees under other theories, but not the private attorney general theory of section 1021.5, and the reviewing courts remanded for an evaluation under section 1021.5. Here, the trial court awarded attorney fees under section 1021.5, and we may review its ruling for abuse of discretion even though it did not specifically articulate an important right affecting the public interest. That the court considered this element and made a finding favorable to BCC is implicit in its ruling.
Turning to the merits of this issue, “It is established that section 1021.5 ‘does not encompass the enforcement of “any” or “all” statutory rights. Thus, . . . the statute directs the judiciary to exercise judgment in attempting to ascertain the “strength” or “societal importance” of the right involved.’ [Citation.] ‘[I]n determining the “importance” of the particular “vindicated” right, courts should generally realistically assess the significance of that right in terms of its relationship to the achievement of fundamental legislative goals.’ [Citation.]” (Center for Biological Diversity v. County of San Bernardino (2010) 185 Cal.App.4th 866, 892.)
GHC argues that BCC cannot establish an important right affecting the public interest because the issue the trial court decided (1) “was procedural rather than substantive”[5] and (2) “related merely to lighting at a single hotel.” We disagree.
In defending the Building and Safety Order, BCC sought to protect several residential communities and visitors to these areas from “a light presentation of dramatic visual effect and out of character with this residentially zoned location,” which “brightly beckons motorists and residents alike.” BCC defeated GHC’s arguments that a hotel operator in an R4 zone can bypass the City Zoning Administrator’s jurisdiction and intensify a use by seeking permits from LADBS, permits that are issued on a ministerial basis so long as safety conditions are met. Through BCC’s defense of this action, the Los Angeles Municipal Code and restrictions on deemed-approved conditional uses were enforced. BCC intervened to prevent the City from permitting an intensification of use without complying with zoning laws and allowing public participation in the process. “[I]mportant public rights are at stake in litigation to enforce . . . compliance with planning and zoning laws.” (Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173, 176, citing San Bernardino Valley Audubon Society, Inc. v. County of San Bernardino (1984) 155 Cal.App.3d 738, 754.)
The trial court did not abuse its discretion in finding in favor of BCC because BCC’s defense of the Building and Safety Order resulted in the enforcement of important rights affecting the public interest within the meaning of section 1021.5: protection of the nature and character of residential communities and protection of the integrity and validity of the City’s zoning laws. These are not merely procedural or technical issues, but substantive rights, which have implications beyond this one hotel property.
3. Benefit conferred on the general public or a large class
GHC contends that BCC cannot show that a benefit was conferred on the general public or a large class of persons, within the meaning of section 1021.5, because only BCC’s own members benefitted from the trial court’s decision denying the petition for writ of mandate.
As our Supreme Court has explained, “the Legislature contemplated that in adjudicating a motion for attorney fees under section 1021.5, a trial court would determine the significance of the benefit, as well as the size of the class receiving benefit, from a realistic assessment, in light of all the pertinent circumstances, of the gains which have resulted in a particular case.” (Woodland Hills Residents Assn., Inc. v. City Council, supra, 23 Cal.3d at pp. 939-940.)
Substantial evidence in the administrative record demonstrates that GHC’s “light presentation” had a negative impact not only on residents of Brentwood and the membership of BCC (in itself a large class of persons), but also on neighboring communities, visitors to those communities and motorists traveling on the 405 Freeway. Thus, it is clear that the trial court’s decision upholding the Building and Safety Order conferred a benefit on a large class of persons.
4. Necessity and financial burden of private enforcement
“‘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.]’” (Woodland Hills Residents Assn., Inc. v. City Council, supra, 23 Cal.3d at p. 941.) GHC contends that BCC cannot satisfy this element because BCC’s litigation fees are proportionate to its stake in the litigation and incurred in the attainment of its own personal goals. (See California Common Cause v. Duffy (1987) 200 Cal.App.3d 730, 750-751 [“If the enforcement of the public interest is merely ‘coincidental to the attainment of personal goals’ [citation] or is ‘self-serving’ [citation], then this requirement is not met”].) We disagree.
BCC’s victory in this case did not merely benefit BCC. As set forth above, substantial evidence in the administrative record demonstrates that the trial court’s decision benefited residents of neighboring communities and members of the general public who pass through these communities.
BCC sought to intervene in this action, even though there would be no money judgment, when it appeared that the City was not planning to fully and adequately defend the Building and Safety Order. BCC presented evidence indicating that the City considered settling with GHC, and permitting GHC to use the multi-colored lighting program, without complying with zoning laws and allowing public participation in the process.
In opposing the petition for writ of mandate, the City and BCC focused on different areas. The City’s opposition emphasized the deferential standard of review in administrative mandamus actions and argued that GHC had not exhausted its administrative remedies. BCC’s opposition chronicled the history of zoning determinations related to the hotel and set forth the legal restrictions on GHC’s right to illuminate the hotel, information essential to the trial court’s decision.
As discussed above, BCC’s efforts to protect the nature and character of a residential community and to protect the integrity and validity of the City’s zoning laws have implications beyond this one hotel property.
Thus, the record supports the trial court’s finding that the costs BCC incurred in defending the Building and Safety Order are out of proportion to BCC’s stake in the litigation.
The trial court did not abuse its discretion in concluding that BCC satisfied the statutory requirements for an award of attorney fees under section 1021.5.
BCC’s Cross-Appeal
BCC does not challenge the lodestar amount of attorney fees the trial court awarded, but contends that the court abused its discretion in refusing to award a fee enhancement. BCC maintains that, “A fee enhancement is necessary in this case to compensate counsel for the contingent risk assumed in a case of relatively high complexity, which was aggressively litigated by opposing counsel at every level, from the administrative phase to the writ proceeding, and now on the attorney’s fees award.” BCC asks this court to “exercise its discretion for the purpose of judicial economy by enhancing the fee award from $125,000 to $200,000,” without remanding the matter to the trial court. Finding that the trial court did not abuse its discretion in making the fee award, we reject BCC’s request for a fee enhancement.
“[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, . . . (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award.” (Ketchum v. Moses, supra, 24 Cal.4th at p. 1132.) “[W]hen determining the appropriate enhancement, a trial court should not consider these factors to the extent they are already encompassed within the lodestar.” (Id. at p. 1138.)
“The economic rationale for fee enhancement in contingency cases has been explained as follows: ‘A contingent fee must be higher than a fee for the same legal services paid as they are performed. The contingent fee compensates the lawyer not only for the legal services he renders but for the loan of those services. The implicit interest rate on such a loan is higher because the risk of default (the loss of the case, which cancels the debt of the client to the lawyer) is much higher than that of conventional loans.’ [Citation.] ‘A lawyer who both bears the risk of not being paid and provides legal services is not receiving the fair market value of his work if he is paid only for the second of these functions. If he is paid no more, competent counsel will be reluctant to accept fee award cases.’ [Citations.]” (Ketchum v. Moses, supra, 24 Cal.4th at pp. 1132-1133.)
BCC asks this court to hold that “a fee enhancement is generally required” in contingency cases. This we decline to do. As our Supreme Court has explained, a “trial court is not required to include a fee enhancement to the basic lodestar figure for contingent risk, exceptional skill, or other factors, although it retains discretion to do so in the appropriate case.” (Ketchum v. Moses, supra, 24 Cal.4th at p. 1138.)
BCC requested a lodestar amount of $211,900 ($49,100 for the administrative proceedings, $132,800 for the litigation and $30,000 for the motion for attorney fees). In making its fee award, the trial court found: “The amount of attorney fees claimed by intervenor is excessive for a proceeding that does not involve a trial or any discovery, but amounts to participation in one administrative hearing and three or four motion hearings before the court. Reasonable attorney fees incurred by intervenor in this proceeding, and in the administrative proceeding that [preceded] it, are in the sum of $125,000.00.” BCC does not challenge the trial court’s finding that the lodestar amount it sought is excessive.
BCC claims that the trial court failed to consider “whether an award of $125,000 is sufficient compensation to encourage busy lawyers to represent clients on a contingency basis in similarly protracted and complicated land use disputes.” BCC’s assertion that the court did not consider its arguments in support of its request for a fee enhancement is not supported by the record. BCC and GHC briefed the issue. BCC argued the issue at the hearing. When GHC’s counsel started to respond to those arguments, the trial court stated: “You don’t need to address it.” At the conclusion of the hearing, the judge stated: “I’m going to stick with the tentative and grant the motion to the extent set forth in the tentative, and deny any fee enhancement over and above the hourly rates.” There is no indication in the record that the court failed to consider BCC’s request for a fee enhancement in light of BCC’s contingency representation.
BCC complains that the trial court did not set forth in the order its specific reasons for denying the fee enhancement. BCC argues, and asks this court to hold that “the failure to provide such an enhancement must be supported by specific justifying findings capable of meaningful review on appeal.” We disagree. As we stated above, a trial court is “not required to issue a statement of decision with regard to [a] fee award,” and GHC “did not request a statement of decision with specific findings.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140.) “‘“All intendments and presumptions are indulged to support [the order] on matters as to which the record is silent, and error must be affirmatively shown.”’ [Citation.] (Ibid.)
BCC has not shown why an attorney fees award of $125,000 “results in a gross under-compensation of counsel” in this particular case. As the trial court found, BCC’s participation in this case involved “one administrative hearing and three or four motion hearings before the court.” A court is not required to award a fee enhancement in every contingency case. (Ketchum v. Moses, supra, 24 Cal.4th at p. 1138.) We do not find that the trial court abused its discretion in declining to award one in this case.[6]
BCC requests an award of appellate attorney fees under section 1021.5. This request should be presented to the trial court on remand. (See Burke v. Ipsen (2010) 189 Cal.App.4th 801, 824.)

DISPOSITION

The order is affirmed. Each side is to bear its own costs on appeal. The case is remanded for the trial court’s consideration of BCC’s request for appellate attorney fees.
NOT TO BE PUBLISHED.



CHANEY, J.

We concur:



ROTHSCHILD, Acting P. J.



JOHNSON, J.









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