Filed 3/12/21 Boppana v. City of Los Angeles CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

RAO BOPPANA et al.

,

Plaintiffs and Appe llant s

,

v.

CITY OF LOS ANGELES

,

Defendant and Respondent

,

ROBERT NOLAN

, Real Party in I nterest and

Respondent. B 304823

(Los Angeles County

Super. Ct. No. BS 159371 )

APPEAL from a post

- judgment order of the Superior Court

of Los Angeles County, James C. Chalfant , Judge. Affirmed

. Craig A. Sherman, for P laintiffs and Appellant s

. Michael N. Feuer, City Attorney, Kathleen A. Kenealy,

Chief Deputy City Attorney, Scott Marcus, Senior Assistant City

Attorney, and Gabriel S. Dermer, Assistant City Attorney, for

Defendant and Respondent City of Los Angeles

.2 Ervin Cohen & Jessup

, Elizabeth M. Thompson and

Kimberly D. Lewis

, for Real Party in I nterest and Respondent

.

_______________________________

INTRODUCTION

Rao and Rita Boppana and Robert Nolan are neighbors.

They have been litigating with each other in a civil action for

years. When the Boppanas learned Nolan had obtained a

construction permit for improvement s on and around his

property, they filed this mandamus action to compel the City of

Los Angeles to revoke the permit. The Boppanas ultimately

prevailed in their mandamus action, and the City revoked

Nolan’s permit. (See Boppana v. City of Los Angeles (Mar. 19,

2019, B283454 ) [nonpub. opn.] ( Boppana I ) .)

The Boppana s filed a motion for attorneys’ fees under

Code of Civil Procedure section 1021.5

, 1 arguing they acted as

private attorney s general and enforced “an important public

issue affecting and benefitting the citizens and residents of the

entire city of Los Angeles.” The superior court denied the

motion, and the Boppanas appealed. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Boppanas and Nolan Build Walls and Fenc es,

Then Sue Each Other

T he Boppanas and Nolan live next to each other in Playa

del Rey, a residential neighborhood in Los Angeles. A 10

- foot

wide public right

- of

- way, known as Veragua Walk, lie s between

1 Undesignated statutory references are to the Code of Civil

Procedure.3

the two properties. At some point after purchasing their

property in 1997, the Boppanas built a wall that, according to

Nolan, “encroach[ed] on Nolan’s portion of Veragua Walk. ”

In 2014 Nolan sued the Boppanas to quiet title to what he

claimed was his portion of Veragua Walk. Nolan sought a

judgment requiring the Boppanas to remove the portion of their

wall Nolan claimed was on his half of Veragua Walk

, enjoining

the Boppanas from surveilling Nolan and his family

, and

prohibiting the Boppanas from planting trees on Veragua Walk

that, over time, would block Nolan’s “incredible view.”

The Boppanas filed a cross

- complaint against Nolan

, alleging he illegally built fences, walls, gates, and other

structures along Veragua Walk and the front yard of his

property

. The Boppanas claimed Nolan’s front yard structure s

extended “‘beyond [Nolan’s] property line’” into the street (a

public right

- of

- way) adjoining his property

. ( Boppana I

, supra

,

B283454

. ) The Boppanas alleged that Nolan constructed and

maintain ed “illegal structures

. . . for which he has no legal

right to use or possess” and that Nolan’s front yard structures

“protrude into the public street and right of way in a location

and height not permitted as a matter of law.” 2 The Boppanas

asserted causes of action for private and public nuisance

, negligence

, and negligence per se

, as well as for trespass

, based

on the allegation Nolan cut and poisoned the Boppana s ’ bamboo

, and invasion of privacy , based on the allegation Nolan filmed and

2 The Boppanas also alleged Nolan built illegal “block walls”

along the western side of his property, constructed a “recreation

building with a roof

- top observation deck,” and increased the

elevation of the side and rear yards “in association with his

build ing of walls and structures.”4

conducted surveillance o f the Boppanas. The Boppanas sought

compensator y and punitive damages.

B. The City Issues Nolan a Revocable Permit, and the

Boppanas Obtain a Writ of Mandate Compelling

the City T

o Revoke It

Through discovery in the ir civil action with Nolan

, the

Boppanas learned in 2015 that Nolan had applied for, and the

City (through the Bureau of Engineering) had issued, a

revocable permit ( known as an R

- Permit) under Los Angeles

Municipal Code section 62.118.2 for the fence, gate, and wall

Nolan built along his front yard and the public right

- of

- way.

( Boppana I

, supra

, B283454

. ) Rao Boppana “was extremely

surprised to hear that [the] City could and would grant

development permits for structures and development s that

[were] not allowed or authorized under city codes, development

ordinances

, and [their] properties’ adopted specific plan.”

On December 1, 2015 the Boppanas filed a petition for

writ of mandate (this action) to compel the City to revoke

Nolan’s permit

, arguing the City

, in reviewing Nolan’s permit

application, did not comply w ith applicable provisions of the Los

Angeles Building Code, the Comprehensive Zoning Plan of the

City of Los Angeles, and the Coastal Bluffs Specific Plan

. Nolan

a nd t he City argued that the se provisions did not apply to

structures built in a public right

- of

- way and that the City did

not have to determine whether Nolan’s application and

proposed structures complied with those laws

. ( Boppana I

,

supra

, B283454

. )

Shortly after filing the ir petition for writ of mandate, the

Boppanas filed a n otice of r elated c ase stating that the civil

action and th e mandamus action involved the same parties,

were based on the same or similar claims, and arose “from the5

same or subs tantially identical transactions, incidents, or

events requiring the determination of the same or substantially

identical questions of law or fact.” The Boppanas also filed, and

the trial court in the civil action granted, an ex parte

application to stay the civil action “pending resolution” of the

mandamus action

. The Boppanas argued in their ex parte

application: “ Adjudication of the issues in the writ

. . . proceeding could resolve and/or cause one or more legal and

factual issues in this case to be m oot.”

In 2017 the superior court denied the Boppanas’ petition

for writ of mandate, and t he Boppanas appealed. On March 19,

2019 we reversed the judgment and held the superior court

should have granted the Boppanas’ petition

. W e concluded Los

Angeles Municipal Code section 62.118.2 required the City to

review a permit application “for compliance with City land use

laws, ” to submit the application “ for review by other city

agencies, ” and to direct the applicant “ to obtain any other

necessar y approvals or permits from other agencies.” Because

the City failed to “consider the applicability of the Building

Code, the Zoning Code, and the Specific Plan” before issuing

Nolan an R

- Permit f

or his front yard structures, we directed the

superior cour t to issue a writ of mandate “compelling the [City]

to revoke the permit.” ( Boppana I

, supra

, B283454.)

O n June 25, 2019 the Boppanas filed a status conference

report in the civil action, asking the trial court to vacate the

stay (which had been in effect for three and a half years) and to

set the matter for trial. Referring to the mandamus action and

our opinion in Boppana I

, the Boppanas asserted : “This related

case involves Boppana’s now successfully challenge[d] and

overturned decision of the City of Los Angeles’

. . . improper

granting of a development and use permit (via a Revocable

Permit) that purportedly allowed

. . . Nolan to construct and6

maintain the subject front an d side yard developments that are

not allowed or permitted under the City’s controlling zoning

codes or the adopted Coastal Bluffs Specific Plan. [¶] Boppana

contends that the illegality and unpermitted construction and

nature of Nolan’s developments, th at have caused the subject

nuisance and damages to Boppana, have been substantially

admitted and substantially proven such that this matter can

now be tried and adjudicated to determine damages and

remedies.”

C. The Boppanas File a Motion for Attorneys’ Fees

Under Section 1021.5

On November 19, 2019 the Boppanas filed a motion under

section 1021.5 seeking to recover the attorneys’ fees they

incurred in the mandamus action

. Rao Boppana stated that he

incurred $88,500 in attorneys’ fees

, which he said was

calculated based on his attorney’s discounted hourly rate.

Counsel for the Boppanas stated he agreed to reduce his hourly

rate b ased o n the “strengths” of the Boppanas’ claims and the

“public

- interest nature” of the case. The Boppanas contended

that the mandamus lawsuit enforced “an important right

affecting the public interest, ” that a “significant benefit has

been conferred on the general public or a large class of persons, ”

and that “the necessity and financial burden of private

enforcement make an award of fees appropriate.”

The superior court in the mandamus action issued a

tentative ruling denying the Boppanas’ motion for attorneys’

fee s, concluding that the Boppanas had “ not i dentified an

important right affecting the public interest,” that they did not

confer a significant benefit on a large class of persons, and that

their financial benefit “far exceed[ed] the $88,500 in attorneys’

fees that [the y ] incurred in this lawsuit.” At the hearing on the7

motion

, c ounsel for the Boppanas argued the engineer who

approved Nolan’s R

- Permit testified he issued “thousands” of R

Permits without considerin g the zoning laws and general plans

of the area. The court stated that

, “in every lawsuit against the

City where the petitioner wins,” the “ C ity [is] being compelled

to follow the law,” but that “there has got to be more than that

to get attorneys’ fees. ” Counsel for the City argued that “this

victory is really a neighbor dispute” and that there was “no

evidence before the court” of how many R

- Permits the City

would issue in the future.

Turni ng to the Boppanas’ financial burden

, c ounsel for the

Boppanas initially argued the court ’s tentative ruling

erroneously looked at the “ potential prospective outcome ” of the

civil action. But a fter further argument, counsel conceded the

court could “look to what [the Boppanas are] asking for in the

[civil] case.” C ounsel for the Boppanas emphasized

, however,

that the court should “deduct

. . . other claims that are

unrelated to this litigation” and calculate that deduction b ased

on “the likelihood of prevailing on those claims.” Counsel for

Nolan argued that the case law focused on the parties’

“incentives ” and “ what they reasonably believed might occur if

they prevailed and how that guided their decision

- making

process.”

The court found that the Boppanas subjectively believed

they would prevail in their cross

- complaint against Nolan and

that this court’s ruling in Bop pa na I helped the Bop p anas

because they could argue in the civil action that issue

preclusion applied to any issues relating to “ the R

- Permit’s

legality .” T he court state d that the two cases “are really

linked.” When c ounsel for the Boppanas responded that the

cases were only related “b y a small aspect

, ” t he court asked

counsel to “p ut a number on it.” When c ounsel for the8

Boppan a s responded, “ $ 100,000

, ” t he court stated, “Even then,

$ 100,000, but you only spent $ 88,500 here.” The court denied

the Boppanas’ motion and adopted its tentative decision as the

ruling of the court. The Boppanas timely appealed.

DISCUSSION

A. Applicable Law and Standard of Review

Section 1021.5 is an exception to the general rule that

“‘parties in litigation pay their own attorney’s fees.’” ( Friends of

Spring Street v. Nevada City (2019) 33 Cal.App.5th 1092, 1107;

see La Mirada Avenue Neighborhood Assn. of Hollywood v. City

of Los Angeles (2 018) 22 Cal.App.5th 1149, 1155 .) It provides in

pertinent 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 affect ing the public interest if: (a) a signif icant

benefit, whether pecuniary or nonpecuniary, has been conferred

on the general public o r a large class of persons, (b) the

necessity and financial burden of private enforcement, or of

enforcement by one public entity against another public entity,

are such as to make the award ap propriate, and (c) such fees

should not in the interest of justice be paid out of the recovery,

if any.” 3 (See Conservatorship of Whitley (2010) 50 Cal. 4th

1206, 1214 & fn. 2 ( Whitley ); Sandlin v. McLaughlin (2020)

50 Cal.App. 5th 805, 827

- 828.)

3 “The third fact or [section 1021.5, subdivision (c)

, ] ‘does not

apply w h ere, as here, a plaintiff’s action produces no monetary

recovery.’” ( Car lsbad Police Officers Ass n

. v. City of Carlsbad

(2020) 49 Cal.App. 5th 135, 145.)9 “‘[T]he Legisla ture 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 t he private

attorney general doctrine of attorney fees is “‘to encourage suits

effectuating a strong [public] policy by awarding s ubstantial

attorney’s fees

. . . to those who successfully bring such suits

and thereby bring about benefits to a broad class o f citizens.’”

[Citation.] The doctrine rests upon the recognition that

privately initiated lawsuits are often essential to the

effectuation of the fundamental public policies embodied in

constitu tional or statutory provisions, and that, without some

mech anism authorizing the award of attorney fees, private

actions to enforce such important public policies will as a

practical matter frequently be infeasible. ’” ( Whitley

, supra

,

50 Cal. 4th at pp. 1217

- 1218; accord, Department of Fair

Employment & Housing v. Cathy’s Creations, Inc

. (2020)

54 Cal.App. 5th 404, 411

- 412; see Center for Biological Diversity

v. County of San Bernardino (2010) 188 Cal.App. 4th 603,

611

- 612 [“‘section 1021.5 acts as an incentive for the pursuit of

public interest

- related lit igation that might otherwise have

been too costly to bring’”].)

“ [ E ] ligibility for section 1021.5 attorne y fees is established

when ‘(1) plaintiffs’ action “has resulted in the enforcement of

an important right affe cting the public interest,” (2) “a

significant benefit, whether pecuniary or nonpecuniary has

been conferred on the general public or a large class of persons”

and (3) “the necessity and financial burden of private

enforcement are such as to make the award appropriate.”’”

( Whitley

, supr a

, 50 Cal. 4th at p. 1214; accord, Sandlin v.

McLaughlin

, supra

, 50 Cal.App. 5th at p. 828.) Because

“‘section 1021.5 states the criteria in the conjunctive, each of10

the statutory criteria must be met to justify a fee award.’”

( People v. Investco Mgmt. & Dev. LLC (2018) 22 Cal.App. 5th

443, 456 ( Investco ); see Millview County Water Dist. v. State

Water Resources Control Bd

. (2016) 4 Cal.App. 5th 759, 769

( Millview ) [“The burden is on the party requesting section

1021.5 fees to demonstrate all element s of the statute, including

that the litigation costs transcend his or her personal

interest.”]; Summit Media LLC v. City of Los Angeles (2015)

240 Cal.App. 4th 171, 187, 193

- 194 ( Summit Media ) [affirming

an order denying attorneys’ fees under section 1021. 5 because

, although the plaintiff satisfied two of the prerequisites in

section 1021.5, the plaintiff did not prove the third].)

“Accordingly, we may uphold the trial court’s order denying the

attorney fees motion if we determine any one of these elements

is missing.” ( Children & Families Com. of Fresno County v.

Brown (2014) 228 Cal.App. 4th 45, 55 ( Chi ldren & Families ).)

We review a ruling on a motion for attorneys’ fees under

section 1021.5 for abuse of discretion. ( Whitley

, supra

,

50 Cal. 4th at p. 1213 .) “ Our review of the trial court ’ s denial of

private attorney general fees is deferential. ” ( Lafferty v. Wells

Fargo Bank, N.A. (2018) 25 Cal.App.5th 398, 420 .) “‘The trial

court’s judgment on whether a plaintiff has proved each of the

prerequisites for an award of attorney fees under section 1021.5

“will not be disturbed unless t he appellate court is convinced

that it is clearly wrong and constitutes an abuse of discretion

. ”’”

( Millview

, supra

, 4 Cal.App. 5th at p. 769.)

B. The Trial Court Did Not Abuse Its Discretion in

Denying the Boppana s ’ Motion for Attorneys’ Fees

Under Section 1021.5

The Boppanas argue the superior court erred in ruling

they failed to meet their burden on all three requirements for11

an award of attorneys’ fees under section 1021.5: enforcing an

important right, conferring a significant benefit on a large class

of persons, and necessarily incurring a financial burden that

ma kes an award appropriate. We question (but need not

resolve) whether the Boppanas enforced an important right

affecting the public interest and whether their mandamus

action conferred a significant benefit on a large class of persons.

Both this action and th e civil action are, at root, part of a long

simmering private dispute between litigious neighbors over

walls, fences, encroachments, and views. But because the

Boppanas failed to meet the third requirement of section

1021.5, showing that the financial bur den of private

enforcement made the award appropriate

, we can conclude the

superior court did not abuse its discretion in ruling the

Boppanas were not entitled to fees under section 1021.5.

1. Applicable Law

“[T]he necessity and financial burden requirement ‘“really

examines two issues: whether private enforcement was

necessary and whether the financial burden of private

enforcement warrants subsidizing the successful party’s

attorneys.”’ [Citation.] The ‘necessity’ of private enforcement

‘“‘“looks to the adequacy of public enforcement and seeks

economic equalization of representation in cases where private

enforcement is necessary.”’ [C itations.]”’ [Citation.]

. . . [¶]

The second prong of the inquiry addresses the ‘financial burden

of private enforcement.’ In determining the financial burden on

litigants, courts have quite logically focused not only on the

costs of the litigation but also any offsetting financial benefits

that the litigation yields or reasonably could have been expect ed

to yield. ‘“An award on the ‘private attorney general’ theory is

appropriate when the cost of the claimant’s legal victory12

transcends his personal interest, that is, when the necessity for

pursuing the lawsuit placed a burden on the plaintiff ‘out of

p roportion to his individual stake in the matter.’ [Citation.]”’

[Citation.] ‘This requirement focuses on the financial burdens

and incentives involved in bringing the lawsuit.’” ( Whitley

,

supra

, 50 Cal. 4th at pp. 1214

- 1215; accord Sweetwater Union

High School Dist. v. Julian Union Elementary School Dist

. (2019) 36 Cal.App. 5th 970, 991

- 992 ( Sweetwater ) .)

“[I]n assessing the fina ncial burdens and benefits

. . . we

are evaluating incentives rather than outcomes. ‘“[W]e do not

look at the plaintiff’ s actual recovery after trial, but instead we

consider ‘the estimated value of the case at the time the vital

litigation decisions were being made.’” ’ ” ( Whitley

, supra

,

50 Cal. 4th at p. 1220; see Children & Families

, supra

,

228 Cal.App. 4th at p. 62.) “A party seeking fees under section

1021.5 has the burden of establishing its litigation costs

transcend its personal interests.” ( Children & Families

, at

p. 55.)

2. The Boppanas’ Financial Burden Did Not

Transcend Their Personal Interests

The City and Nolan do not argue the Boppanas’

enforcement of Los Angeles Municipal Code section 62.118.2

was not necessary. The City, which was responsib le for

reviewing applications for permits to build on a public rig ht

- o f

way, did not review Nolan’s permit application in compliance

with Los Angeles Municipal Code section 62.118.2

. Therefore,

the Boppanas had to enforce that provision of the municipal

code in the mandamus action

. (See Whitley

, supra

, 50 Cal. 4th

at p. 1215 [“‘[i]nasmuch as the present action proceeded against

the only governmental agencies that bear responsibility for the

subdivision approval process, the necessity of private, as13

compared to public, enforcement becomes clear’”]; Bui v. Nguyen

(20 14) 230 Cal.App. 4th 1357, 1366

- 1367 [same] .) But t he City

and Nolan do dispute that the Boppanas’ financial burden

outweighed their financial stake in the case. For their part, the

Boppanas argue the superior court “misapplied the relevant and

binding case law and erred in estimating [their] financial gain”

from their successful mandamus action.

In explaining how t o determine the financial burden the

litigation placed on the party seeking attorneys’ fees under

section 1 021.5

, the Supreme Cour t in Whitley

, supra

, 50 Cal. 4th

at page 1215, cited with approval the “method for weighing

costs and benefits” described in Los Angeles Police Protective

League v. City of Los Angeles (1986) 188 Cal.App.3d 1, 9

- 10

.

The Supreme Court held : “‘The trial court must first fix

— or at

least estimate

— the monetary value of the benefits obtained by

the success ful litigants themselves.

. . . Once the court is able

to put some kind of number on the gains actually attained it

must discount these total benefit s by some estimate of the

probability of success at the time the vital litigation decisions

were made which eventually produc ed the successful

outcome.

. . . [¶] “ After approximating the estimated value of

the case

. . . , the court must then turn to the costs of the

litigation

. . . , which may have been required to b ring 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 b ounty of a court

awarded fee in order to encourage litigation of the sort involved

in this case.’” ” ( Whitley

, at pp. 1215

- 1216; accord, City of

Oakland v. Oakland Police & Fire Retirement System (2018)

29 Cal.App.5th 688, 699

- 700 ( City of Oakland ) .) “[T]he absence

of a monetary award, or of precise amounts attached to financial

incentives, does not prevent a court from determining whether14

the plaintiff’s financial burden in pursuing the lawsuit is ‘“‘out of

proportion to his individual stake in the ma tter



### . ’”’” ( Summit

Media

, supra

, 240 Cal.App. 4th at p. 193.)

The superior court did not abuse its discretion in ruling

t he Boppanas failed to show the financial burden of litigating

the mandamus action “placed a burden on them ‘out of

proportion to [their] individual stake in the matter.’” Following

the method for estimating costs and benefits approved in

Whitley

, supra

, 50 Cal. 4th at page 1215, the superior court

started by considering t he Boppanas ’ cross

- complaint against

Nolan in the civil action. In that cross

- complaint, t he Boppanas

alleged that the “illegal” and “un permitted” structures, which

included those Nolan built to enclose his front yard, caused

them $400,000 in damages. The superior court fixed the

Boppanas’ expected financial recovery at a minimum of

$400,000, and based on the discount factor proposed by counsel

for the Boppanas at the hearing

, reduced the $400,000 recovery

by 75 percent to $100,000. After comparing the adjusted

amount of expected compensatory damages to the $88,500 in

attorneys’ fees the Boppanas incurred, the court concluded t he

costs of the mandamus litigation did not transcend t he

Boppanas’ financial incentive. In assessing the Boppanas’

financial incentive to challenge Nolan’s R

- Permit, the superior

court reasonably determined the Boppanas’ victory in this case,

which established the R

- Permit’s “illegality,” would “aid them

in obtaining co mpensatory and punitive damages” in the civil

action.15 The Boppanas alleged in their cross

- complaint that

Nolan’s construction was illegal or unpermitted

. 4 Establishing

that fact would inevitably help th e Boppanas prove their

nuisance and negligence causes of action in the civil action

against Nolan

. (See Evid. Code, § 669, subd. (a) [“ [t] he failure

of a person to exercise due care is presumed ” if he or she

“ violated a statute, ordinance, or regulation of a public entity”];

Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939

- 940 [“a private

person who suffers identifiable harm by reason of a violation of

a municipal zoning law may sue the violator for compensatory

damages”]; Vollaro v. Lispi (2014) 224 Cal.App. 4th 93, 102, fn. 7

[“‘“‘ proof of [ a party’s] violation of a statutory standard of

conduct raises a presumption of negligence’” ’ ”]; Golden Gate

Water Ski Club v. County of Contra Costa (2008)

165 Cal.App. 4th 2 49, 255 [“ [v] iolations of a planning co de

constitute a public nuisance ”].)

But when Nolan pr oduc ed evidence in discovery in the

civil action that he had obtained a permit for the front yard

structures, the Boppanas’ nuisance and negligence causes of

4 In the ir nuisance cause of action, the Boppanas alleged

that “Nolan knew of the legal requirements to obtai n building

permits and /or variances to construct

. . . one or more of the

walls, fences, gates, and structures ” and that he “ proceeded

without authority or permits, without review and approval of

building plans and inspectio ns, irrespective [of] laws

. . . put in

place to protect the rights o f the Boppanas.” In the ir negligence

cause of action, the Boppanas alleged that “Nolan owes a duty

to the Boppanas to not construct or maintain illegal,

unauthorized, defective structures and land uses” and that the

“ structures created

. . . by Nolan have not been used and/or

maintaine d within a standard of care

. . . nor has plans o r

permits been applied, rev iewed and approved.”16

action became more difficult to prove. Nolan’s newly disclosed

permit “surprised” Rao Boppana, who had always believed the

structures were illegal and unpermitted

. It became imperative

for the Boppanas to seek revocation of the permit, which the y

ultimately achieved in the mandamus action

. As the Boppanas

argued in support of their petition for a writ of mandate: “By

the R

- P ermit, Nolan has obta ined an end

- around process

. . . whereby he obtain ed approval for structures

. . . that are known

by No l an and City to be illegal. [¶]

. . . [¶] Despite kn owledge

of his illegality,

. . . Nolan has sought to obtain use and

legitimacy of his illegal structures via the R

- Permit.”

Thus, the Boppanas had a significant private financial

reason for filing the petition for writ of mandate

— to compel the

City to revoke the R

- P ermit and (re) establis h the illegality of

Nolan’s construction. 5 And once the Boppanas accomplished

this goal, they promptly asked the trial court to vacate the stay

of the civil action and argued that their victory in the

mandamus action “substantially” proved Nolan’s construction

was illegal, created a nuisance, and caused the Bop p anas ’

damages. The Boppanas told the trial court that the mandamus

action had essentially pro ven their case on liability and that the

only remaining issues to be “ tried and adjudicated” in the civil

action were the amount of their damages and their entitle ment

to other remedies. As the superior court commented

, in finding

5 The Boppanas were well aware that proving Nolan ’ s front

yard construction was illegal would support their nuisance

cause of action. In a brief filed in support of their petition for

writ of mandate, the Boppanas argued, “It is well settled that

violations of municipal/ building/planning and/or zoning codes

are a public nuisance.”17

the Boppanas expected the mandamus action to aid their civil

action, “What more do I need?”

The Boppanas’ other court filings provide d further

support for the superior court’s conclusion that the civil action

and the mandamus action were “intertwined.” The Boppanas

attempted to relate the civil action and the mandamus action.

When that effort failed because the superior court in the

ma ndamus action could not preside over civil actions ( which are

assigned to the independent calendar courts )

, the Boppanas

filed an ex parte application to stay the civil action “pending

resolution” of the mandamus action

. The Boppanas argued the

mandamus a ction could resolve or moot some of the issues in

the civil action

. The superior court did not abuse its discretion

in concluding that the Boppanas expected the mandamus action

to assist their civil action and that the Boppanas stood to gain

much more than the $88,500 in attorneys’ fees they expended.

In Norberg v. California Coastal Com

. (2013)

221 Cal.App. 4th 535 the court reached a similar conclusion on

similar facts

. In that case the plaintiff obtained a writ of

mandate directing the California Coastal Commission to set

aside certain restrictions it had imposed on a permit for

residential improvements. The court in Norberg reversed an

award of attorneys’ fees under section 1021.5 because

, even

though the plaintiff did not obtain a monetary award and did

not intend to sell his property in the foreseeable future, “the

financial burden of the litigation was not out of proportion to

[his] individual stake in the matter.” ( Norberg, at p. 539.) The

court concluded that the plaintiff’s “ goal was to enhance his

private property with $250,000 in improvements. We call this a

financial incentive. We cannot slice it any other way.” ( Id

. at

p. 545; see Beach Colony II v. California Coastal Com

. (1985)

166 Cal.App.3d 106, 109, 114 [ plaintiff was not entitled to fees18

under section 1021.5 where its “ financial stake in the outcome

of its litigation was substantial ” and where the writ of mandate

that ordered the agency t o strike one of the conditions in a

construction permit allowed the plaintiff to build the

develo p ment at greatly reduced cost ]; Schwartz v. City of

Rosemead (1984) 155 Cal.App.3d 547, 551

- 552, 559 [ plaintiff

was not entitled to fees under section 1021.5 w here the

plaintiff, who obtained an order compelling the city to conduct

an environmental review

, “initiated the suit to prevent the

threat of damage or depreciation to his property”].)

Like the plaintiff in Norberg v. California Coastal Com.

(and the plaintiffs in similar cases), the Boppanas’ incentive for

seeking a writ of mandate was almost exclusively financial :

Revocation of Nolan’s R

- P ermit would create an easier path to

prov ing one of the key facts they needed to prove in their

nuisance and negligence causes of action ; namely, that Nolan

built his front yard structures illegally. As the Boppanas

asserted (at the time they filed the ir petition) : “It can hardly be

said that [the] Boppana[s] [ar e] not beneficially interested and

aggrieved by a neighbor obtaining a development and use

permit that has structures and other features zoning and ot her

land use rules do not allow.

. . . [The] Boppana[s] [are]

not

. . . public activist[s] from Pasadena complaining about a

permit or land use decision in Playa del Rey.” No, they are not.

(See Weiss v. City of Los Angeles (2016) 2 Cal.App.5th 194, 218

[“In enacting section 1021.5, ‘the Legislature was focused on

public interest litigation in the conventional sense: litigation

designed to promote the public interest by enforcing laws that a

governmental or private entity was violating, rather than

private litigation that happened to establish an important

precedent.’”].)19 Although the Boppanas conc eded at the hearing on the

motion for attorneys’ fees that the superior court could consider

the ir expected recovery in the civil action, the Boppanas now

contend the superior court should not have considered those

financial incentives. Emphasiz ing the wo rds “litigation” and

“lawsuit” from a passage in Whitley

, supra

, 50 Cal. 4th at page

1215, the Boppanas argue the superior court should have

focused only on “the financial incentives of the instant lawsuit .”

That’s not how it works. The Supreme Court in Whitley did not

hold that section 1021.5 limits the court’s consideration of a

litigant’s benefits to those obtained i n the lawsuit. To the

contrary, a s the Supreme Court discussed in Whitley ( in the

same passage cited by the Boppanas )

, in evaluating the

financial burden under section 1021.5, the court should

consider

, in addition to the costs of the litigation, any actual or

reasonably expected yields from the litigation. ( Whitley

, at

p. 1215; see Summit Media

, supra

, 240 Cal.App. 4th at p. 192

[“ Whitley [does not] say that a plaintiff’s financial incentive

must be ‘direct’”].) T he Boppanas expected to prevail in the

mandamus action and anticipated that a victory there would

help them prevail in the ir civ il action against Nolan. (See

Summit Media

, at pp. 188

- 189

, 193

- 194 [plaintiff had an

“enormou s ” financial incentive to seek a writ of mandate to

compel the city to set aside a settlement agreement that

exempted the plaintiff’s competitors from certain restrictions

that applied to others in the industry

, where the plaintiff

claimed the agreement put him at a “competitive disadvantage”

that would “ ‘ injure [his] business goodwill ’ ” and where

,

a lthough the mandamus action did not yield a financial

recovery, the plaintiff had “a personal financial stake in [the]

litigation that was sufficient to warrant its decision to incur

significant attorney fees and costs ”]; see also Millview

, supra

,20

4 Cal.App. 5th at p. 770 [plaintiff had a financial incentive to

challeng e a cease and desist order that would have restricted its

purchased right to divert water].) T he Boppanas had ample

financial incentive to pursue the mandamus action and try to

compel the City to revoke Nolan’s R

- Permit.

The Boppanas assert

, for the first time on appeal and

without citing any authority, that even if the superior court

properly considered the value of the civil action, the court should

have app lied a discount factor of 83.33 percent to the ir $400,000

in compensatory damages, t o account for the fact “5 out of 6 of the

subjects in the nuisance, trespass, and privacy invasion

claims

. . . have no connection whatsoever to the front

- yard

structures.” Because the Bop p anas did not make this argument

in the superior court

, it is forfeited. (See S weetwater

, supra

,

36 Cal.App. 5th at p. 993 [“‘arguments not asserted below are

waived and will not be considered for the first time on appeal’”].)

It also lacks merit. That the Boppanas alleged other causes

of action or identifie d other illegally constructed structures in

their cross

- complaint in the civil action did not mean they valued

each cause of action against Nolan

, and each allegation of

wrongd oing

, equally. For example, Rao Boppana stated he was

seeking damages in the civil action not only for “diminution in

the value of the real property” related to the “[n]uisance from

Nolan’s unpermitted constructions,” but also for “ [ l ] oss of

. . .

abutter’s rights from Nolan’s front yard construction

. ” He

described the nuis ance created by Nolan’s front yard structures

as follows : “I expect when I drive out of my driveway

. . . the

house on either side would have the same require ments in terms

of fence heights.

. . . [W]e have a difficul t time backing out than

if

. . . Nola n’s wall an d the trees are not there.

. . . [¶] It’s the

sight lines.

. . . [¶]

. . . [I]t’s get [ ting ] worse for us on a daily21

basis.” In fact

, the superior court probably underestimated the

compensatory damages that the Boppanas anticipated recoverin g

for Nolan’s unpermitted front yard encroachments, which they

claimed presented “safety issues” and caused them “fear.” 6

Moreover

, even applying the Boppanas’ belatedly asserted

discount factor of 83.33 percent to the total amount the

Boppanas were seeking in the civil action ($400,000 in

compensatory dam a ges and $1 million in punitive damages),

the net proceeds from the civil action would be approximately

$233,000, which still exceed s the $88,500 in attorneys’ fees they

incurred in the mandamus action

.

The cases the Boppanas cite are distinguishable. In

Investco

, supra

, 22 Cal.App.5th 443 investors who intervened in

a security fraud action “ did not avoid any loss of money or value

to their assets or investments by specially appearing in the

. . . action, and there were no benefits that ‘ immediately and

directly translated into ’ economic terms for [the intervenors] as

a result of their success ” because they simply secured “the right

to sue.” ( Id. at p p. 468, 470 .) In Heron Bay Homeowners Assn.

v. City of San Leandro (2018) 19 Cal.App.5th 376 the plaintiffs

obtained a writ compelling the city to prepare an environmental

impact report before approving a project, but the report would

not necessarily cause the city to set aside its approval

, and the

plaintiffs filed the action i n part because of the project’s impact

on “wildlife, aesthet ics, health and noise levels.” ( Id. at pp. 381,

6 In referring to the danger posed by the visual obstruction

created by the vegetation growing in Nolan’s front yard, counsel

for the Boppanas commented: “Fortunately, they haven’t been

in a car accident and died, so we don’t have a million

- dollar

claim.”22

390, 393.) I n Boatworks, LLC v. City of Alameda (2019)

35 Cal.App.5th 290 the “ estimated value of the case [was] lower

than the $558,052.50 in attorney fees ,” a ny “ financial benefit

[the plaintiff] might receive [was] ‘ at least once removed from

the results of the litigation ,’” and the plaintiff’s “ financial

benefit was speculative .” ( Id. at p. 310.) And in City of

Oakland

, supra

, 29 Cal.App.5th 688

, an “unusual” case brought

by retirees who could not afford litigation expenses because of

their “relative poverty” and who did not stand to gain any “new

money” but were only trying “ to avoid significant repayments of

pension benefits they likely had alrea dy allocated

, ” the court

held an award of fees was appropriate “‘in the interest of

justice.’” ( Id. at p p

. 702

- 703

, 708

- 709 .) In contrast to the

plaintiffs in these cases, the Bop p anas

, who own property on a

coastal bluff and do not claim poverty, obtained a significant

economic benefit for themselves in the mandamus action in the

form of facts and findings they could use in their private

litigation with their neighbor.23 DISPOSITION

The superior court’s order denying the Boppanas’ motion

for attorneys’ fees is affirmed. The City and Nolan are to

recover their c osts on appeal.

SEGAL, J.

We concur:

PERLUSS, P. J.

McCORMICK, J. *

* Judge of the Orange County Superior Court, assigned by

the Ch ief Justice pursuant to article VI, section 6 of the

California Constitution.