Filed 7/24/15 Ocean View School Dist. v. City of Huntington Beach CA4/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

OCEAN VIEW SCHOOL DISTRICT,

 Plaintiff and Appellant,

v.

CITY OF HUNTINGTON BEACH et al.,

 Defendants and Respondents;

DECRON PROPERTIES 

CORPORATION et al.,

 Real Parties in Interest and 

Respondents.

 G049545

 (Super. Ct. No. 30-2012-00539563)

 O P I N I O N

Appeal from an order of the Superior Court of Orange County, Steven L. 

Perk, Judge. Affirmed in part, reversed in part, and remanded.
2

Connor, Fletcher & Hedenkamp, Edmond M. Connor and Douglas A. 

Hedenkamp for Plaintiff and Appellant.

Jennifer McGrath, City Attorney, John M. Fujii, Sr., Deputy City Attorney 

for Defendants and Respondents.

Jeffer Mangels Butler & Mitchell, Benjamin M. Reznik and Matthew D. 

Hinks for Real Parties in Interest and Respondents.

* * *

In January 2012, Ocean View School District (OVSD) filed a petition for a 

writ of mandate, seeking decertification of the Final Environmental Impact Report 

(FEIR) approved by City of Huntington Beach (the City), for the Beach and Warner 

mixed-use project on property located southwest of the intersection at Beach Boulevard 

and Warner Avenue in Huntington Beach. The City, its city council and the City’s 

planning commission were also named as respondents in the writ petition. Len Lichter, 

an owner of one of properties involved, and Decron Properties Corporation (Decron), the 

other owner and proposed developer, and the City’s redevelopment agency were named 

as real parties in interest. In addition to seeking decertification of the FEIR, the petition 

also sought attorney fees pursuant to Code of Civil Procedure section 1021.5,

1 the private 

attorney general statute. 

Approximately 16 months later in May 2013, the City decertified the FEIR 

and withdrew the notice of determination it had filed in connection with the FEIR. 

Pursuant to the parties’ subsequent stipulation deeming the petition moot, the court 

dismissed the petition and set a briefing schedule for OVSD’s motion for attorney fees.

The trial court denied OVSD’s motion, finding OVSD was ineligible for an 

award under section 1021.5 because it failed to show it did not have a pecuniary interest 

 

1 All undesignated statutory references are to the Code of Civil Procedure.
3

in the outcome of the lawsuit. There was evidence OVSD would incur over $2 million in 

expenses if it had to reopen a closed school to handle the additional new students it would 

be charged with educating should the project go through. OVSD appealed, and argues

that contrary to the trial court’s conclusion, it had no pecuniary interest in litigating this 

matter. It reasons that because there was no formal project under consideration when the 

City approved the FEIR, it was not faced with the possibility of having to pay over $2 

million to reopen a closed school as a result of the FEIR. We agree and reverse. Because 

there was no formal proposal under consideration when the City adopted the FEIR, 

whether OVSD would ever be required to expend funds to reopen a previously closed 

school site is purely speculative and does not equate to OVSD having a financial interest 

in the litigation that outweighed the expense of litigation.

I

FACTS

In light of the limited issue before us on appeal, the following facts suffice. 

The Beach and Edinger Corridors Specific Plan was adopted by the City in March 2010. 

There were four projects to be analyzed in the Environmental Impact Report (EIR) for the 

specific plan, but it was decided each of the projects would have its own EIR in order to 

provide the public and the “decision-makers” adequate time to analyze each project. The 

January 2011 draft EIR for the Beach and Warner mixed-use project stated the proposed 

project is located on the southwest corner of Beach Boulevard and Warner Avenue in 

Huntington Beach. The project included retail businesses, restaurants, a three-level 

parking structure, and 279 residential dwelling units. The draft EIR noted the proposed 

project site was contemplated by the EIR for the Beach and Edinger Corridors Specific 

Plan.

Decron owns a majority of the property within the project site and Lichter’s 

property is “sandwiched” by Decron’s. Initially, Lichter agreed to have his property 

included in the EIR analysis although he had not made a decision to join in the project.
4

OVSD opposed approval of the EIR. At the October 25, 2011 planning 

commission meeting, the superintendent of OVSD stated that neither the City nor any 

developer contacted the school district to determine the impact the project would have on 

the school district. The superintendent said the project would cause “additional 

overcrowding at a school site that’s already packed to capacity and would impact 

[OVSD’s] busing and support program.” He claimed the project “would probably mean”

OVSD would be required to reopen a school that has been closed for 20 years. 

At the same planning commission meeting, the City represented “there is 

no project proposed at this time.” It was anticipated that upon presentation of a formal 

application for development, the City would evaluate any such proposed project against 

the EIR under consideration by the City, as well as the development standards of the 

Beach and Edinger Corridors Specific Plan.

On December 19, 2011, a representative of OVSD spoke at the City’s 

council meeting and stated that based on the housing proposed in the project, the school 

district would have to reopen Park View Elementary School (Park View) at a cost of 

approximately $2.4 million to bring it into compliance with applicable codes if the Beach 

and Warner mixed-use project goes forward. The City certified the FEIR later that night.

OVSD filed a petition for a writ of mandate in the Orange County Superior 

Court on January 23, 2012. The petition alleged the City’s certification of the FEIR 

failed to comply with California Environmental Quality Act (CEQA; Pub. Resources

Code, § 21000 et seq.) and CEQA guidelines (Cal. Code Regs., tit 14, § 15000 et seq.). 

Within a few months of the filing of the petition, Lichter’s attorney 

informed OVSD’s counsel that Lichter wanted nothing to do with the project and wanted 

out of the litigation. Counsel for OVSD prepared a stipulation and order to dismiss 

Lichter as a real party in interest.
5

On May 20, 2013, the City decertified the FEIR for the Beach and Warner 

mixed-use project. On July 15, 2013, a stipulation and a proposed order deeming the 

petition moot were filed in the action. The parties stipulated the City decertified the 

FEIR, and that neither Decron nor any other party applied to the City “for any permits, 

approvals, or other land use entitlements of any kind in connection with” the FEIR. The 

petition was dismissed a week later.

OVSD subsequently filed its motion for attorney fees under section 1021.5. 

It sought $127,751.22 in attorney fees for litigating the petition and an additional $8,625 

for fees incurred in preparing the motion for attorney fees. Although written in a broad 

and unclear manner, it appears the motion was for the court to order both the City and

Decron to pay OVSD’s attorney fees. The motion stated it was based on the stipulation 

and order deeming the petition for a writ of mandate moot. That stipulation and order set 

forth the briefing schedule for the anticipated motion for attorney fees. OVSD was to file 

and serve its motion by August 30, 2103, and the City and Decron were to file and serve 

either a consolidated opposition or their separate oppositions by October 2, 2013. It also 

appears Lichter was not a party to the attorney fee motion. There was no briefing from 

Lichter on OVSD’s motion, he was not served with OVSD’s notice of appeal, and he has 

not appeared in this court.

The trial court denied OVSD’s request for attorney fees. The court found 

OVSD failed to show the lack of a pecuniary interest in the litigation, or that the attorney 

fees incurred by OVSD transcended its financial interest in the litigation. Additional 

facts are set forth below where relevant.

II

DISCUSSION

A. Section 1021.5

Section 1021.5’s private attorney general doctrine “rests upon the 

recognition that privately initiated lawsuits are often essential to the effectuation of the 
6

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.) “[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, italics added.) Put another way, “‘[s]ection 

1021.5 was not designed as a method for rewarding litigants motivated by their own 

pecuniary interests who only coincidentally protect the public interest. [Citations.]’ 

[Citation.]” (Austin v. Board of Retirement (1989) 209 Cal.App.3d 1528, 1535.) Rather, 

section 1021.5 provides “‘an incentive for . . . plaintiffs to bring public interest suits 

when their personal stake in the outcome is insufficient to warrant incurring the cost of 

litigation.’ [Citation.]” (Conservatorship of Whitely, supra, 50 Cal.4th at p. 1221.)

Litigation involving CEQA may qualify under section 1021.5 as litigation 

involving an important public interest. “[T]he strong state public policy expressed in 

CEQA [is] an ‘important right’ within the meaning of section 1021.5.” (Schwartz v. City 

of Rosemead (1984) 155 Cal.App.3d 547, 558; accord, Healdsburg Citizens for 

Sustainable Solutions v. City of Healdsburg (2012) 206 Cal.App.4th 988, [ensuring 

compliance with CEQA involves an important public interest]; see also Woodland Hills 

Residents Assn., Inc. v. City Council, supra, 23 Cal.3d 917, at p. 936, fn. 11 [listing 

federal cases finding environmental protection may involve important rights].) 

B. Standard of Review

Generally, an appellate court reviews a trial court decision concerning an 

award of attorney fees pursuant to section 1021.5 for an abuse of discretion. (Collins v. 
7

City of Los Angeles (2012) 205 Cal.App.4th 140, 152.) OVSD argues the proper standard 

of review is de novo, citing Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, and 

Conservatorship of Whitley, supra, 50 Cal.4th 1206, in support of its contention.

In Connerly v. State Personnel Bd., supra, 37 Cal.4th 1169, the plaintiff

challenged the constitutionality of a number of statutes prohibiting governmental 

preference based on “race, sex, and other categories.” (Id. at p. 1172.) When the state 

did not defend the constitutionality of the statutes, certain advocacy groups joined the 

action as amici curiae and defended the action on the merits. During the litigation, amici 

curiae were redesignated as real parties in interest. After Connerly prevailed on his writ 

petition, he sought and was awarded attorney fees against the advocacy groups. The 

issue on appeal was whether the advocacy groups were “opposing parties,” under section 

1021.5. (Ibid.)

As in the present case, the parties in Connerly disagreed on the proper 

standard of review. The Supreme Court stated the standard: “‘On review of an award of 

attorney fees after trial, the normal standard of review is abuse of discretion. However, 

de novo review of such a trial court order is warranted where the determination of 

whether the criteria for an award of attorney fees and costs in this context have been 

satisfied amounts to statutory construction and a question of law.’” (Connerly v. State 

Personnel Bd., supra, 37 Cal.4th at p. 1175, quoting Carver v. Chevron U.S.A., Inc.

(2002) 97 Cal.App.4th 132, 142.) That being said, the court noted that when an issue is a 

mixed question of law and fact, a deferential standard of review may apply “if factual 

questions predominate.” (Connerly v. State Personnel Bd., supra, 37 Cal.4th at p. 1175.) 

Because the issue in Connerly was whether one in the former amici curiae’s unusual 

position could be considered an “opposing party” under the private attorney general 

statute, a question of law was presented requiring de novo review. (Id. at pp. 1175-1176.)
8

As noted above in section A, ante, in determining whether to award 

attorney fees pursuant to section 1021.5, courts should consider “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 appropriate.” (§ 1021.5.) In 

Conservatorship of Whitley, supra, 50 Cal.4th 1206, the conservator of her 

developmentally disabled brother successfully litigated an issue involving the procedure 

to be followed when there is an objection to the transfer of a conservatee’s placement. 

(Id. at p. 1211.) The conservator prevailed and filed a motion for attorney fees under 

section 1021.5. The North Bay Regional Center opposed the motion and argued the 

conservator had a personal interest in blocking her brother’s transfer and the financial 

burden of litigating the matter was “not out of proportion to her personal interest” in the 

litigation. (Conservatorship of Whitley, supra, 50 Cal.4th at p. 1213.)

The Supreme Court granted review to determine “whether a litigant’s 

nonpecuniary interests can disqualify him or her from eligibility under section 1021.5.” 

(Conservatorship of Whitley, supra, 50 Cal.4th at pp. 1213-1214.) That issue required 

the court to construe section 1021.5. Thus, the question presented was one of law and as 

such, required de novo review. (Conservatorship of Whitley, supra, 50 Cal.4th at p. 

1214.)

This case does not require us to construe section 1021.5. The trial court 

denied OVSD’s request for attorney fees because it concluded there was evidence OVSD 

had a pecuniary interest in filing the lawsuit and the costs incurred in the lawsuit were not 

out of proportion with that pecuniary interest. It has already been determined that a 

party’s pecuniary interest in the litigation itself does not disqualify a successful plaintiff 

from recovering attorney fees under section 1021.5. (Lyons v. Chinese Hospital Assn.

(2006) 136 Cal.App.4th 1331, 1352.) “‘If the party claiming fees has a pecuniary interest 

in the outcome of the lawsuit, the issue is whether the financial burden placed on the 

party is out of proportion to its personal stake in the lawsuit.’ [Citations.]” (Ibid.) 
9

Whether the financial burden of the litigation was out of proportion to the financial 

benefit to OVSD and its constituents is not a question of law. (Children & Families 

Com. of Fresno County v. Brown (2014) 228 Cal.App.4th 45, 58.) Neither is whether a 

plaintiff has a pecuniary interest in the litigation. Accordingly, we review the trial court’s 

decision for an abuse of discretion.

C. The Trial Court Erred in Finding OVSD Had a Pecuniary Interest in the Litigation.

Section 1021.5 is an exception to the American rule whereby litigants bear 

their own attorney fees. (Graham v. DaimlerChrystler Corp. (2004) 34 Cal.4th 553, 

565.) Attorney fees may be awarded pursuant to section 1021.5 to a party that has 

prevailed in an action resulting in the enforcement of an important right affecting the 

public interest.2 (Vasquez v. State of California (2008) 45 Cal.4th 243, 250-251.) 

Section 1021.5 contains three factors that must each be established by a successful 

plaintiff. (City of Maywood v. Los Angeles Unified School Dist. (2012) 208 Cal.App.4th 

362, 429.) Those are: “(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, or of enforcement by one public entity against 

another public entity, 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.” (§ 1021.5; Vasquez v. 

State of California, supra, 45 Cal.4th at p. 251.) The third requirement involves two 

additional considerations: “‘“whether private enforcement was necessary and whether 

the financial burden of private enforcement warrants subsidizing the successful party’s 

attorneys.”‘ [Citations.]” (Conservatorship of Whitley, supra, 50 Cal.4th at pp. 1214-

1215.) Historically, only private parties were eligible for an award of attorney fees 

 

2 “[T]he terms ‘prevailing party’ and ‘successful party,’ as used in section 

1021.5, are synonymous. [Citations.]” (Graham v. DaimlerChrysler Corp., supra, 34 

Cal.4th at p. 570.) 
10

pursuant to section 1021.5, but in 1993, the Legislature amended the section to authorize 

an award of attorney fees to a prevailing public entity against another public entity when 

the former sues the latter to enforce an important public right. (See Historical and 

Statutory Notes, 18A West’s Ann. Code of Civ. Proc. (2007 ed.) foll. § 1021.5, p. 83.)

To sum up, a party is entitled to attorney fees pursuant to section 1021.5 

when it has demonstrated 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. [Citations.]” (Baggett v. Gates (1982) 32 Cal.3d 128, 142, 

fn. omitted.)

OVSD argues it had strong nonpecuniary interests in initiating this 

litigation, but no pecuniary interest in the litigation. It reasons that because no project 

had been submitted for approval at the time the City approved the FEIR, the possibility 

that OVSD would ever have to spend a substantial amount of its funds (over $2 million) 

to reopen a school was purely speculative. We agree. Given there was no project 

submitted by any contractor to the City to build anything in the area covered by the FEIR, 

much less any project consistent with the nonexistent project considered in the FEIR, 

OVSD was not faced with a reasonably foreseeable likelihood of having to use funds 

from its budget to bring the closed facility up to code and to cover other expenses related 

to reopening a closed school. The plan considered in the FEIR appears to have 

considered using Lichter’s land, but at the October 25, 2011 planning commission 

meeting before adoption of the FEIR, Lichter said he did not want to participate in such 

an extensive project.

The possibility that OVSD would have to someday expend over $2 million 

to reopen a closed school based on the purported plan considered in the FEIR is too 

speculative to be considered a financial incentive for contesting the FEIR. For OVSD to 

be faced with the possibility of having to expend funds to reopen the closed school based 
11

as a result of the City adopting the FEIR, (1) Lichter would have to change his mind and 

sell his property; (2) some person or entity would have to make arrangements with 

Decron concerning the use of its property in a project, (3) a builder would have to 

propose a project along the lines considered in the FEIR, and (4) submit the same or 

similar project plan to the City. At the time OVSD filed its petition for a writ of mandate 

challenging the certification of the FEIR, OVSD had no reason to believe any such 

scenario was imminent, or even in the works. When OVSD filed the petition below, it 

was not faced with an immediate prospect of having to expend any funds based on the 

approval of the FEIR.

The costs incurred by OVSD in litigating this matter transcended any 

speculative pecuniary interest it had in the litigation. An award of attorney fees pursuant 

to section 1021.5 is appropriate “when the necessity for pursuing the lawsuit placed a 

burden on the plaintiff out of proportion to his individual stake in the matter.” (Galante 

Vineyards v. Monterey Peninsula Water Management Dist. (1997) 60 Cal.App.4th 1109,

1126, citing Woodland Hills Residents Assn., Inc. v. City Council, supra, 23 Cal.3d at p. 

941.) Thus, even if OVSD had a pecuniary interest in bringing an action to decertify the 

FEIR, OVSD would not automatically be ineligible for an award of attorney fees. 

Entitlement to an award of attorney fees turns “‘on a comparison of the [plaintiff’s] 

private interests with the anticipated costs of suit. . . .” (Galante Vineyards v. Monterey

Peninsula Water Management Dist., supra, 60 Cal.App.4th at pp. 1126-1127.)

Had the City approved the FEIR, adopting a project that had been 

submitted to it and it was evident OVSD would have to expend over $2 million as a result 

of the certification of the FEIR, the more than $127,000 OVSD expended in litigation

may have been reasonable in relation to OVSD’s more than $2 million interest in the 

matter. But when there was no project submitted to the City for approval, no project was 

approved by the City, and one of the purported landowners previously disavowed any 

desire to build a project such as the nonexistent project considered by the City, the 
12

possibility that OVSD would ever be faced with the $2 million expenditure is so 

speculative that expending over $127,000 in litigating the propriety of the FEIR 

transcended any pecuniary interest OVSD had in the litigation. (See Galante Vineyards 

v. Monterey Water Peninsula Management Dist., supra, 60 Cal.App.4th at pp. 1126-

1127.) In other words, OVSD’s speculative, if any, pecuniary interest was insufficient 

“to justify the litigation in economic terms.” (Conservatorship of Whitley, supra, 50 

Cal.4th at p. 1211.)

As noted above, section 1021.5 provides “‘an incentive for . . . plaintiffs to 

bring public interest suits when their personal stake in the outcome is insufficient to 

warrant incurring the cost of litigation.’ [Citation.]” (Conservatoship of Whitley, supra, 

50 Cal.4th at p. 1221.) The intent of section 1021.5 is served by awarding OVSD 

attorney fees in this matter.

1. Significant Benefit to the General Public

As a separate ground for affirming the order denying OVSD attorney fees, 

the City argues the case did not confer a significant benefit on the general public. (See § 

1021.5 [attorney fee award requires a showing the action resulted in a “significant benefit

. . . has been conferred on the general public of a large class of persons”].) While we 

have the ability to affirm a judgment on grounds other than those relied upon by the trial 

court (Flagship Theaters of Palm Desert, LLC v. Century Theaters, Inc. (2011) 198 

Cal.App.4th 1366, 1377, fn. 7), it does not appear the trial court considered the issue of 

whether a significant benefit was conferred on the public. Consequently, it is appropriate 

to remand the matter to the trial court to make that determination in the first instance. We 

therefore reverse the trial court’s order denying OVSD attorney fees as against the City 

and remand the matter to the superior court for a hearing on OVSD’s motion for attorney 

fees pursuant to section 1021.5.
13

2. Decron is Not Subject to OVSD’s Motion for Attorney Fees.

Decron argues that even if OVSD is entitled to attorney fees pursuant to 

section 1021.5, such an order cannot be made against a private entity (i.e., Decron). In 

People ex rel. Cooper v. Mitchell Brothers’ Santa Ana Theater (1985) 165 Cal.App.3d 

378, the city attorney for Santa Ana brought a lawsuit against the Mitchell Brothers’

Theater and, having prevailed on certain issues, sought attorney fees under section 

1021.5. (People ex rel. Cooperv. Mitchell Brothers’ Santa Ana Theater, supra, 165

Cal.App.3d at p. 382.) On appeal, Santa Ana’s request for attorney fees was denied 

because section 1021.5 provided in pertinent part: “‘With respect to actions involving 

public entities, this section applies to allowances against, but not in favor of, public 

entities . . . .’” (People ex rel. Cooper v. Mitchell Brothers’ Santa Ana Theater, supra, 

165 Cal.App.3d at pp. 385-386; see Stats. 1977, ch. 1197, § 1.) 

In 1993, the Legislature amended section 1021.5 to permit a public entity to 

recover attorney fees under that section, but only against other public agencies. “With 

respect to actions involving public entities, this section applies to allowances against, but 

not in favor of, public entities . . . .” (§ 1021.5, italics added; Stats. 1993 ch. 645, § 2.)

“This bill would permit award of attorney’s fees to public entities under the above stated 

provisions, if the award is against another public entity.” (Sen. Floor Analysis of Sen. 

Bill No. 764 (1993-1194 Reg. Sess.) May 26, 1993, italics added.) Thus, it is evident that 

section 1021.5 does not authorize a court to order a private entity to pay a public 

agency’s attorney fees. Accordingly, Decron is not a proper party to OVSD’s motion for 

an award of attorney fees pursuant to section 1021.5. Therefore, we affirm the trial 

court’s order denying OVSD’s motion for attorney fees as to Decron.
14

III

DISPOSITION

The order denying OVSD attorney fees is reversed as to the City and 

affirmed as to Decron. The matter is remanded to the superior court for a determination 

of the amount of attorney fees, if any, to be awarded OVSD and to be paid by the City. 

Decron shall recover its costs on appeal from OVSD. OVSD shall recover from the City 

its costs on appeal attributed to its efforts to overturn the trial court’s denial of attorney 

fees to be paid by the City.

MOORE, ACTING P. J.

WE CONCUR:

ARONSON, J.

IKOLA, J.