Zubarau v. City of >Palmdale>



























Filed 1/17/13
Zubarau v. City of Palmdale CA2/5

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>NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS

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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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







IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND APPELLATE DISTRICT



DIVISION FIVE




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ALEC ZUBARAU, Plaintiff and Appellant, v. CITY OF PALMDALE, Defendant and Respondent.

B236406 (Los Angeles County Super. Ct. No. BS114330)

APPEAL
from an order of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Ann I. Jones, Judge.
Reversed and remanded.

Leonard
J. Shaffer for Plaintiff and Appellant.

Meyers,
Nave, Riback, Silver & Wilson, Deborah J. Fox and Dawn A. McIntosh for
Defendant and Respondent.



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INTRODUCTION

This
case returns to us following our prior opinion in Zubarau v. City of Palmdale (2011) 192 Cal.App.4th 289 in which we
affirmed and reversed parts of the trial court’s judgment and remanded the
matter to allow plaintiff and appellant Alec Zubarau to move for an award of
attorney fees with respect to two of his three causes of action. On remand, the trial court denied Zubarau’s
motion for attorney fees pursuant to Code of Civil Procedure section 1021.5
(section 1021.5). Zubarau appeals the
trial court’s ruling. We reverse the
trial court’s ruling and remand the matter for the trial court to consider
whether the claimed attorney fees were necessary and reasonable.



BACKGROUNDhref="#_ftn1" name="_ftnref1" title="">>^[1]

Zubarau
obtained a permit from defendant and respondent City of Palmdalehref="#_ftn2" name="_ftnref2" title="">>^[2] to erect a radio tower
antenna at his home. Thereafter,
following complaints about that and another antenna on Zubarau’s property, the
City Planning Commission revoked Zubarau’s permit. Zubarau appealed to the City Council. The City Council denied part of the
appeal. (Zubarau v. City of Palmdale, supra, 192 Cal.App.4th at pp.
294-298.)

Zubarau
then filed a verified petition for writ of mandate and declaratory relief in
the trial court challenging the City’s order that he remove the antenna from
his yard and a City zoning ordinance that regulated antennae. (Zubarau
v. City of Palmdale, supra, 192 Cal.App.4th at p. 298.) Zubarau’s first cause of action sought a writ
of mandate directing the City Council to grant his appeal and reinstate SFMM
05-139—the City’s initial approval of his application to construct a tower
antenna at his home—and permit number B05-00722 for the tower antenna. (Ibid.) Zubarau’s second cause of action sought a
writ of mandate striking portions of the City’s zoning ordinance, asserting
that state and federal law preempted City Zoning Ordinance section 95.03 B.1,
which limited the height of the active element of an antenna array to a maximum
height of 30 feet, and City Zoning Ordinance section 95.03 B.3, which concerned
the regulation of radio frequency interference.
(Ibid.) Zubarau’s third cause of action sought a
declaration that parts of City Zoning Ordinance sections 95.03 A and 95.03 B
were unenforceable as unconstitutionally vague.
(Ibid.)

The
trial court ruled in favor of Zubarau on his first cause of action, issuing
Zubarau’s requested writ of mandate. (>Zubarau v. City of Palmdale, supra, 192
Cal.App.4th at p. 299.) The trial court
ruled against Zubarau on his second and third causes of action. (Ibid.) Thereafter, the trial court denied Zubarau’s
motion for attorney fees pursuant to section 1021.5 and Government Code section
800. (Zubarau v. City of Palmdale, supra, 192 Cal.App.4th at p.
299.) Both parties appealed.

On
appeal, we reversed the trial court’s writ of mandate with respect to Zubarau’s
first cause of action which writ vacated the City’s order to remove Zubarau’s
tower antenna. (Zubarau v. City of Palmdale, supra, 192 Cal.App.4th at p.
304.) We held that substantial evidence
supported the City’s decision to revoke the zoning clearance for the antenna
and that the City reasonably accommodated Zubarau’s ability to participate in
amateur radio communications when it allowed him to keep a roof-mounted
antenna. (Ibid.) We reversed the trial
court’s ruling on Zubarau’s second cause of action, holding that the regulation
of radio frequency interference was an area over which the Federal
Communications Commission had exclusive jurisdiction. (Id.
at p. 306.) We also reversed the trial
court’s ruling on Zubarau’s third cause of action, holding that Zoning
Ordinance section 95.03 B.1 was unenforceable because it was unconstitutionally
vague. (Id. at pp. 310-311.) We
affirmed the trial court’s denial of Zubarau’s request for attorney fees in
connection with his first cause of action, and remanded the matter to the trial
court to allow Zubarau to move for an award of attorney fees as to his second
and third causes of action. (>Id. at pp. 311-312.)

On
remand, Zubarau moved for an award of $69,500 in attorney fees under section
1021.5. The trial court found that
Zubarau was a successful party as to the second and third causes of action; the
case resulted in the enforcement of important public rights as it concerned the
application of federal law in the context of local ordinances, not only with
respect to radio frequency interference, but also “in other instances in which
ordinances impinge on matters of interstate significance”; and the case
conferred a significant benefit on the general public because it assured the
entire amateur radio community that local governmental agencies would not
regulate in areas concerning radio frequency interference and there was “no
question that the interface between local ordinances affecting radio frequency
interference will recur in other settings in the future.” The trial court denied the attorney fees
motion, however, finding that Zubarau was not acting as a private attorney
general in bringing his action, but rather to protect his personal
interests. Thus, the trial court found
the attorney fees Zubarau incurred in the litigation were not disproportionate
to his personal stake in the action, and Zubarau actually incurred no attorney
fees in the action because he did not pay his attorney any such fees.



DISCUSSION

Zubarau
Was Entitled To Attorney Fees Under Section 1021.5

Zubarau
contends that the trial court abused its discretion in denying his motion for
attorney fees pursuant to section 1021.5.
Zubarau was entitled to recover attorney fees in connection with his
second and third causes of action.



>A. Standard
of Review

“We
review an attorney fee award under section 1021.5 generally for abuse of
discretion. Whether the statutory
requirements have been satisfied so as to justify a fee award is a question
committed to the discretion of the trial court, unless the question turns on
statutory construction, which we review de novo. [Citations.]”
(Collins v. City of Los Angeles
(2012) 205 Cal.App.4th 140, 152.)



>B. Application
of Relevant Principles

Section
1021.5href="#_ftn3" name="_ftnref3"
title="">^[3]> “codifies the
‘private attorney general’ doctrine under which attorney fees may be awarded to
successful litigants.
‘The doctrine rests upon the recognition that privately initiated
lawsuits are often essential to the effectuation of the fundamental public
policies embodied in constitutional or statutory provisions, and that, without
some mechanism authorizing name="citeas((Cite_as:_30_Cal.App.4th_562,_*56">the award of attorney fees,
private actions to enforce such important public policies will as a practical
matter frequently be infeasible.
[Citations.]’ [Citation.] Entitlement to fees under section 1021.5
requires a showing that the litigation:
‘(1) served to vindicate an important public right; (2) conferred a
significant benefit on the general public or a large class of persons; and (3)
imposed a financial burden on plaintiffs which was out of proportion to their
individual stake in the matter.’
[Citation.]” (>California Licensed Foresters Assn. v. State
Bd. of Forestry (1994) 30 Cal.App.4th 562, 568-569, fn. omitted.)

“[T]he
purpose of section 1021.5 is not to compensate with attorney fees only those
litigants who have altruistic or lofty motives, but rather all litigants and
attorneys who step forward to engage in public interest litigation when there
are insufficient financial incentives to justify the litigation in economic
terms.” (Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1211.) “As the statute makes clear, subdivision (b)
of section 1021.5 focuses not on plaintiffs’ abstract personal stake, but on
the financial incentives and burdens related to bringing suit. Indeed, in the absence of some concrete
personal interest in the issue being litigated, the putative plaintiff would
lack standing to bring an action.
[Citation.]” (>Press v. Lucky Stores, Inc. (1983) 34
Cal.3d 311, 321 & fn. 11.) “The
literal language of section 1021.5 supports the name="SR;5283">Press court’s focus on name="SR;5287">financial
incentives and burdens. The statute
requires a court to consider the ‘financial burden of private
enforcement.’ As a logical matter, a
strong nonfinancial motivation does not change or alleviate the ‘financial
burden’ that a litigant bears. Only
offsetting pecuniary gains can do that.”
(Conservatorship of Whitley,
supra, 50 Cal.4th at p. 1217.)

“The method for weighing costs and
benefits [of litigation] is illustrated in Los Angeles Police Protective
League v. City of Los Angeles (1986) 188 Cal.App.3d 1 [232 Cal.Rptr. 697] (Los
Angeles Police Protective League).
‘The trial court must first fix—or at least estimate—the monetary value
of the benefits obtained by the successful litigants themselves . . . . Once the court is able to put some kind of
number on the gains actually attained it must discount these total benefits by
some estimate of the probability of success at the time the vital litigation
decisions were made which eventually produced the successful outcome. . .
. Thus, if success would yield . . . the
litigant group . . . an aggregate of $10,000 but there is only a one-third
chance of ultimate victory they won’t proceed—as a rational matter—unless their
litigation costs are substantially less than $3,000. name="sp_4645_847">name="citeas((Cite_as:_50_Cal.4th_1206,_*1215,">[¶] ‘After approximating the estimated value of
the case at the time the vital litigation decisions were being made, the court
must then turn to the costs of the litigation—the legal fees, deposition costs,
expert witness fees, etc., which name="citeas((Cite_as:_50_Cal.4th_1206,_*1216,">may have been required to
bring the case to fruition. . . .
[¶] The final step is to place
the estimated value of the case beside the actual cost and make the value
judgment whether it is desirable to offer the bounty of a court-awarded fee in
order to encourage litigation of the sort involved in this case. . . . [A] bounty will be appropriate except where
the expected value of the litigant’s own monetary award exceeds by a
substantial margin the actual litigation costs.” (Los Angeles Police Protective League,
supra, 188 Cal.App.3d at pp. 9–10.)”
(Conservatorship of Whitley,
supra, 50 Cal.4th at pp. 1215-1216; Press
v. Lucky Stores, Inc., supra, 34 Cal.3d at p. 321 [when the plaintiff has
no pecuniary interest in outcome of the litigation, the financial burden
element has been established].)







1. Vindication of important public rights

The
trial court correctly found that Zubarau’s action resulted in the enforcement
of important public rights. The trial
court stated, “The issues of federal preemption and the unconstitutionality of
vague ordinances are not minor matters of little public interest. The question of whether and how to apply
federal law in the context of local ordinances is of great significance. . .
. [T]he Court of Appeal’s approach to
the question of preemption informs cases not only in this narrow bandwidth, but
also in other instances in which ordinances impinge on matter of interstate
significance.”

The
City contends that Zubarau’s victory did not concern an important public right
because it still retains the power to regulate radio antennae if not in a
manner that concerns radio frequency interference.href="#_ftn4" name="_ftnref4" title="">>^[4] Thus, the City argues, the
required changes to its ordinance amounted to little more that technical
corrections. Moreover, any vindication
of constitutional principles regarding the doctrine of preemption, the City
contends, was only in a broad and theoretical sense.

Zubarau’s
second cause of action did not contend that the City was not permitted to
regulate radio antennae on any basis.
Rather, it challenged the City’s regulation of radio antennae on the
ground that its ordinance impermissibly regulated radio antennae on a basis
preempted by federal law. The
significance of the City’s impermissible regulation of an area preempted by
federal law is not lessened because the City has other, permissible bases on
which to regulated radio antennae.
Because Zubarau’s action resulted in the invalidation of the offending
part of the City’s ordinance, Zubarau’s victory was not theoretical but
practical.



2. Significant benefit for the general
public or large class of persons

The
trial court found that Zubarau’s action conferred a significant benefit on the
general public because it assured the entire amateur radio community that local
governmental agencies will not regulate in areas concerning radio frequency
interference and there was “no question that the interface between local
ordinances affecting radio frequency interference will recur in other settings
in the future.” In determining whether
an action conferred a significant benefit on the general public or a large
class of persons, the trial court may consider both persons who presently
benefit from the action’s outcome and those who will benefit in the
future. (Slayton v. Pomona Unified School Dist. (1984) 161 Cal.App.3d 538,
551-552.) Here, present and future
amateur radio operators—in Palmdale and other California cities—will benefit
from Zubarau’s action, as it resulted in our decision in Zubarau v. City of Palmdale, supra, 192 Cal.App.4th 289 that local
governments may not regulate radio antennae in a way that concerns radio
frequency interference. Accordingly,
Zubarau’s action conferred a significant benefit on the general public or a
large class of persons.



3. Financial burden

At
oral argument on Zubarau’s attorney fees motion, the trial court stated, “This
looks at the disproportionality of costs vis-à-vis his personal interest or
personal stake. He is an avid radio
operator, this is his passion. He would
have brought this suit under any theory you could have cooked up to bring it in
under. That really is the question
here. [¶] Do I need the promise of future fees to get
him to sue to vindicate these interests, his own personal interests and the
interests of the public? I don’t
know. In this case, I think I have
to.”

Zubarau’s
counsel argued that Zubarau’s personal interest was in communicating with his
homeland of Belarus and that his investment in the tower antenna was $5,000 or
$6,000. Counsel posed the question to
the trial court whether Zubarau would have pursued the action, given his
interest in amateur radio communication, if he knew that he would incur nearly
$70,000 in attorney fees. The trial
court responded that it believed Zubarau would have pursued the matter “to the
ends of the Earth.”

Following
oral argument, the trial court issued a written order in which it denied
Zubarau’s attorney fees motion for two reasons:
(1) Zubarau brought the action to protect his personal interest in
pursuing his amateur radio hobby and not as a private attorney general, and (2)
Zubarau did not personally incur attorney fees.
The trial court’s order stated that Zubarau’s personal “interests in
having a permitted antenna in pursuit of his amateur radio hobby . . . provided
him with sufficient motivation to prosecute this matter even without attorneys’
fees. [¶] In this case, Zubarau was not acting as a
private attorney general. He was,
instead, acting to protect his personal interests. Therefore, fees incurred by him in the
litigation are not disproportionate to his personal stake here. Also, the financial burden on Petitioner was
non-existent. . . . Petitioner did not
incur any legal fees in defending this action.”
(Footnote omitted.)

In
denying Zubarau’s attorney fees motion because the financial cost of the
litigation far outweighed any financial stake Zubarau had in the litigation,
the trial court erred. (>Conservatorship of Whitley, supra, 50
Cal.4th at pp. 1215-1216; Press v. Lucky
Stores, Inc., supra, 34 Cal.3d at p. 321.)
The asserted cost of the litigation was $69,500. Zubarau arguably had no or little financial
interest in the outcome of the litigation—he brought the action to preserve his
right to operate a radio antenna for which the City had granted a permit. At most, Zubarau’s financial interest in the
litigation was the $5,000 or $6,000 that Zubarau’s attorney estimated was the
cost of the antenna.

That
Zubarau may have acted out of self-interest and may not have been motivated by
“altruistic or lofty motives,” contrary to the trial court’s ruling, does not
disqualify him from an award of attorney fees.
(Conservatorship of Whitley,
supra, 50 Cal.4th at p. 1211; Edna
Valley Watch v. County of San Luis Obispo (2011) 197 Cal.App.4th 1312,
1320, citing Conservatorship of Whitley,
supra, 50 Cal.4th at p. 1211 [“a litigant’s personal nonpecuniary interests
may not be used to disqualify the litigant from obtaining fees under section
1021.5”].) The financial burden aspect
of section 1021.5 does not focus on a plaintiff’s personal interest in
litigation, but on the financial incentives and burdens to pursuing the
litigation. (Press v. Lucky Stores, Inc., supra, 34 Cal.3d at p. 321 & fn.
11; Conservatorship of Whitley, supra,
50 Cal.4th at p. 1211.) As discussed
above, Zubarau’s litigation vindicated important public interests and conferred
a significant benefit on the general public or large class of persons. That Zubarau also had a strong nonpecuniary
interest in the litigation—i.e., to keep his radio antenna—did not change or
alleviate the financial cost of such litigation. (Conservatorship
of Whitley, supra, 50 Cal.4th at p. 1217.)
Only an award of attorney fees can alleviate that cost. (Ibid.) The monetary value of the case was small;
Zubarau had negligible pecuniary interest in the outcome of the case; and the
value of the decision is such that it is desirable to offer a bounty. Thus, in denying Zubarau’s attorney fees
motion, the trial court erred in focusing on Zubarau’s personal interest in the
litigation and not on the financial incentives and burdens to pursuing the
litigation.

Zubarau
was not disqualified from an award of attorney fees under section 1021.5
because he was not personally liable for the attorney fees. (Lolley
v. Campbell (2002) 28 Cal.4th 367, 370-371.) In Lolley
v. Campbell, the Supreme Court reversed a Court of Appeal’s holding that an
employee who was represented without charge by the Labor Commissioner was
ineligible for an award of attorney fees under Labor Code section 98.2 because
the employee had not “incurred” any attorney fees. (Ibid.) The court stated, “‘A party’s entitlement to
fees is not affected by the fact that the attorneys for whom fees are being
claimed were funded by governmental or charitable sources or agreed to
represent the party without charge.’
(Cal. Attorney Fee Awards (Cont.Ed.Bar 2d ed. 1999) § 3.3, p. 48 (rev.
11/01).)” (Id. at p. 373.) The court
observed, “Our appellate courts have repeatedly affirmed awards of attorney
fees under various fee-shifting provisions for legal services provided at no
personal expense to the client. Thus, >Folsom v. Butte County Assn. of Governments
(1982) 32 Cal.3d 668, 681 [186 Cal.Rptr. 589, 652 P.2d 437], rejected the
contention that statutory fees under Code of Civil Procedure section 1021.5
could not be awarded to pay for legal services provided to the plaintiffs
because they ‘incurred no personal liability for the services of their
attorneys, several of whom were employed by agencies funded primarily with
public monies.’” (Id. at p. 374.) Accordingly,
the trial court erred in denying Zubarau’s attorney fees motion on the ground
that Zubarau had not personally incurred any attorney fees.

Because
Zubarau satisfied the requirements of section 1021.5, he was entitled to
recover his necessary and reasonable attorney fees with respect to his second
and third causes of action. As the trial
court ruled that Zubarau was not entitled to any award of attorney fees, it did
not reach the issue of to what extent the attorney fees claimed were necessary
and reasonable. We remand the matter for
the trial court to make those determinations.



DISPOSITION

The
order denying Zubarau attorney fees is reversed. The matter is remanded to the trial court to
determine to what extent the attorney fees requested were necessary and
reasonable. Zubarau is awarded his href="http://www.mcmillanlaw.com/">costs on appeal.

NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.







MOSK,
J.





We concur:







TURNER, P. J.







ARMSTRONG, J.