Filed 10/31/17 The Kennedy Commission v. City of Huntington Beach CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE KENNEDY COMMISSION et al.,

Plaintiffs and Respondents,

v.

CITY OF HUNTINGTON BEACH et al.,

Defendants and Appellants.


E066605

(Super.Ct.No. 30-2015-00801675)

OPINION


APPEAL from the Superior Court of Orange. Michael L. Stern, Judge. Reversed.
Michael E. Gates, City Attorney, Michael J. Vigliotta, Chief Assistant Attorney for Defendants and Appellants.
Jones Day, Roman E. Darmer, Walter C. Waidelich; Public Law Center, Kenneth W. Babcock; California Affordable Housing Law Project, Public Interest Law Project, Craig D. Castellanet, Michael F. Rawson; Legal Aid Society of Orange County and Sarah J. Gregory for Plaintiffs and Respondents.
Defendants and appellants the City of Huntington Beach and the City Council of Huntington Beach (collectively, City) appeal from a postjudgment order issued by the Superior Court of Los Angeles County awarding $648,512.75 in attorney fees to plaintiffs and respondents The Kennedy Commission, William Adams and Jason Puloe (collectively, Kennedy) under Code of Civil Procedure section 1021.5.
FACTUAL AND PROCEDURAL HISTORY
In The Kennedy Commission et. al. v. City of Huntington Beach et. al., case No. E065358 (Kennedy I), Kennedy successfully obtained a writ of mandate commanding City to cease enforcing, administering or implementing its amended Beach Edinger Corridors Specific Plan (BESCP) which changed the development requirements in the Beach and Edinger corridor in Huntington Beach. The writ of mandate was issued pursuant to Government Code section 65454 because the amended BESCP conflicted with City’s general plan by reducing the amount of affordable housing that could be built in the corridor.
On April 28, 2016, Kennedy filed its motion for attorneys’ fees pursuant to Code of Civil Procedure section 1021.5 (Motion). Kennedy contended it were entitled to reasonable attorneys’ fees from City under Code of Civil Procedure section 1021.5 for its successful litigation enforcing important rights affecting the public interest and conferring significant benefits on City and the County of Orange. It contended there was no question that it was the “successful” party. It sought $663,307.75 in attorney fees, which included $37,050 for preparing the instant Motion.
City filed opposition to the Motion. City contested that Kennedy’s lawsuit enforced any important public right or conferred any significant benefit to the general public. Prior to the filing of the lawsuit, City was already in the process of amending the general plan to provide alternative sites for affordable housing. In addition, the lawsuit did not guarantee the building of any affordable housing. City additionally argued that even if Kennedy was entitled to fees, the amount requested was “outrageously unreasonable.”
The matter was heard on June 9, 2016. The trial court issued its ruling on June 27, 2016. It found the matter presented concerned a controversial matter of significant public concern, the issues were technical and difficult, and the case was taken on a contingent basis. The court had reviewed all of the billing records. It granted the Motion without any changes. The order was entered awarding Kennedy $648,512.75 in attorneys’ fees on July 13, 2016.
DISCUSSION
On appeal, in Kennedy I, we reversed the writ of mandate finding that City was exempt from the consistency requirement of Government Code section 65454 because it was a charter city.
“Section 1021.5 authorizes a court to award attorney fees to a ‘successful party’ when the action resulted in the enforcement of an important right affecting the public interest, a significant benefit has been conferred, and the necessity of private enforcement makes the award appropriate. [Citations.] To recover fees under this statute, a claimant must show he or she was successful in the action.” (National Parks and Conservation Assn. v. County of Riverside (2000) 81 Cal.App.4th 234, 238.) Where an appellate court reverses a judgment ordering issuance of a writ of mandate, the trial court’s Code of Civil Procedure section 1021.5 attorney fees award must also be reversed. (National Parks, at p. 238; see also Gillian v. City of San Marino (2007) 147 Cal.App.4th 1033, 1053; City of Sacramento v. State Water Resources Control Bd. (1992) 2 Cal.App.4th 960, 978.)
Although we determine that the attorneys’ fees award must be reversed because it was based on the trial court considering Kennedy to be the prevailing party, this does not end the possibility for Kennedy to recover its attorneys’ fees. We note that Kennedy may have an argument that it is entitled to attorney fees under the catalyst theory. “Under the catalyst theory, attorney fees may be awarded even when litigation does not result in a judicial resolution if the defendant changes its behavior substantially because of, and in the manner sought by, the litigation.” (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 560 (Graham).) “To encourage suits enforcing important public policies, our Supreme Court has taken ‘a broad, pragmatic view of what constitutes a “successful party.” “Our prior cases uniformly explain that an attorney fee award may be justified even when plaintiffs legal action does not result in a favorable final judgment.” ’ ” (Godinez v. Schwarzeneegger (2005) 132 Cal.App.4th 73, 89.)
In determining whether to award fees under the catalyst theory, “[t]he trial court must determine that the lawsuit is not ‘frivolous, unreasonable or groundless’ [citation], in other words that its result was achieved ‘by threat of victory, not by dint of nuisance and threat of expense.’ ” (Graham, supra, 34 Cal.4th. at p. 575.) In addition, “to be eligible for attorney fees under section 1021.5, a plaintiff must not only be a catalyst to defendant’s changed behavior, but the lawsuit must have some merit . . . and the plaintiff must have engaged in a reasonable attempt to settle its dispute with the defendant prior to litigation.” (Id. at pp. 560-561.)
“Whether the applicant for attorney fees has proved section 1021.5’s elements is a matter primarily vested in the trial court.” (Wal-Mart Real Estate Business Trust v. City Council of San Marcos (2005) 132 Cal.App.4th 614, 620.) Here, since the trial court awarded fees to Kennedy as the prevailing party, it did not have occasion to determine whether the lawsuit had some merit or that Kennedy made a reasonable effort to settle the dispute. As such, remand is necessary for a determination of whether Kennedy is entitled to fees under the catalyst theory. (See Graham, supra, 34 Cal.4th at p. 577.)
DISPOSITION
The Los Angeles County Superior Court’s order granting The Kennedy Commission, William Adams and Jason Puloe $648,512.75 in attorney fees is reversed. As noted in Kennedy I., The Kennedy Commission, William Adams and Jason Puloe have 30 days to seek to reinstate the remaining causes of action, which were dismissed once the writ of mandate was issued. Upon remand, if The Kennedy Commission, William Adams and Jason Puloe choose not to reinstate the remaining causes, it is entitled to file a motion for attorney fees in accordance with this opinion. The parties shall bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


MILLER
Acting P. J.


We concur:


CODRINGTON
J.


FIELDS
J.