The opinion
Filed 8/2/24 Westlands Water District v. All Persons Interested etc. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
WESTLANDS WATER DISTRICT,
F085374
Plaintiff and Appellant,
(Super. Ct. No. 19CECG03887)
v.
ALL PERSONS INTERESTED etc. et al., OPINION
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Fresno County. D. Tyler
Tharpe, Judge.
Stradling Yocca Carlson & Rauth, Allison E. Burns and Douglas S. Brown for
Plaintiff and Appellant.
Law Offices of Stephan C. Volker, Stephan C. Volker, Stephanie L. Clarke and
Jamey M.B. Volker for Defendants and Respondents North Coast Rivers Alliance,
Winnemem Wintu Tribe, California Sportfishing Protection Alliance, Institute For
Fisheries Resources, Pacific Coast Federation of Fishermen’s Associations, and San
Francisco Crab Boat Owners Association.
-ooOoo-
Code of Civil Procedure section 1021.5 (section 1021.5) authorizes an award of
attorney fees to a successful party in any action resulting in the “enforcement of an
important right affecting the public interest” if, inter alia, a “significant benefit” has been
conferred upon society or a large class of people. The statute codifies the private attorney
general doctrine and “the courts’ ‘traditional equitable discretion’ concerning attorney
fees …, and within the statutory parameters courts retain considerable discretion.”
(Vasquez v. State of California (2008) 45 Cal.4th 243, 251.) “In deciding whether to
award fees, the court ‘must realistically assess the litigation and determine, from a
practical perspective, whether or not the action served to vindicate an important right so
as to justify an attorney fee award under a private attorney general theory.’” (Ibid.)
This appeal challenges a trial court’s decision to award fees pursuant to section
1021.5 in a validation action. Appellant Westlands Water District (Westlands) had an
existing contract with the federal government that was about to expire and both sides
intended to enter into a new agreement. Westlands’ complaint sought a judicial decree
regarding the validity of the anticipated contract. However, the contract presented to the
trial court for validation was missing key terms regarding Westlands’ financial
obligations under the agreement.
The trial court said it likely would have validated the contract, despite the
omissions, but for the opposition of multiple parties, including respondents herein.
Respondents pointed out the absence of material terms in the draft agreement and lack of
public disclosure of the missing information. The trial court ultimately refused to
validate the contract. Westlands’ complaint was ordered dismissed, and respondents
were later awarded over $100,000 in attorney fees. In its fees ruling, the trial court noted
the importance of “transparency and accountability in public contracts.”
Westlands argues there were no successful parties in the validation action. It also
claims the trial court erred by finding respondents helped enforce “an important right”
and conferred a “significant benefit” upon the general public. (§ 1021.5.) Westlands’
2.
strongest argument focuses on the significant benefit requirement. The trial court did not
rule the contract was unlawful; it declined to affirmatively validate it due to Westlands’
failure to meet the applicable burdens. There was no evidence to suggest the dismissal of
Westlands’ validation action had any impact on Westlands’ contractual relationship with
the federal government. The contracting parties entered into a revised agreement while
the action was still pending, and they had been performing under the new contract for
over two years by the time respondents’ motion for attorney fees was granted.
On the other hand, the dismissal of Westlands’ complaint was affirmed by this
court in a published opinion, Westlands Water Dist. v. All Persons Interested (2023) 95
Cal.App.5th 98. The case presented a novel issue, arising from an unusual set of facts,
regarding the propriety of validating an incomplete contract when the missing terms are
material to the contractual subject matter of local government debt and expenditure.
“The publication of an opinion suggests that the case involved a matter of public
importance.” (Doe v. Westmont College (2021) 60 Cal.App.5th 753, 764.) Publication
may also confer a significant benefit by “clarifying existing law and requiring it to be
followed.” (McCormick v. Public Employees’ Retirement System (2023) 90 Cal.App.5th
996, 1010.) In deference to the trial court’s considerable discretion, we affirm its
decision to award attorney fees under section 1021.5.
FACTUAL AND PROCEDURAL BACKGROUND
This court is familiar with the parties and the underlying litigation from prior
appeals. A comprehensive background is provided in Westlands Water Dist. v. All
Persons Interested, supra, 95 Cal.App.5th at pages 104 through 124, which we
incorporate by reference. Due to the nature of the issues in this appeal, much of the
information is repeated in the first part of this summary.
Overview and Prior Merits Determinations
Westlands is a public agency formed for the purpose of obtaining federal
reclamation water from the Central Valley Project (CVP) and distributing the water to its
3.
constituents. In 1963, Westlands and the United States Bureau of Reclamation (Bureau)
entered into a 40-year water service contract. When the original contract expired,
Westlands and the Bureau executed a series of interim renewal contracts to maintain the
status quo until they could meet the requirements of the Central Valley Project
Improvement Act (Pub.L. No. 102-575 (Oct. 30, 1992) 106 Stat. 4706), which had
imposed restrictions on long-term renewals of water service contracts.
In late 2016, Congress enacted the Water Infrastructure Improvements for the
Nation Act (Pub.L. No. 114-322 (Dec. 16, 2016) 130 Stat. 1628) (WIIN Act). This
legislation authorized a limited-time opportunity for water contractors like Westlands to
convert their existing water service contracts into a type of agreement known as a
“repayment contract.” (WIIN Act, § 4011.) Converted contracts had to be executed by
December 2021. (Id., § 4013.) Such conversions were also contingent upon the
contractor’s repayment of all outstanding project construction cost obligations in a “lump
sum,” or “in approximately equal installments, no later than 3 years after the effective
date of the repayment contract ….” (Id., § 4011(a)(2)(A).)
By 2019, Westlands and the Bureau had agreed in principle to convert their sixth
interim renewal contract to a repayment contract. On October 15, 2019, Westlands’
board of directors (Board) met and formally authorized the execution of a converted
contract “in substantially the form presented to [it],” which at the time was an incomplete
draft missing four exhibits referenced in the body of the document. On October 25, 2019,
Westlands filed its validation complaint in the Fresno Superior Court pursuant to Code of
Civil Procedure section 860 et seq., Government Code section 53510 et seq., and Water
Code section 35855.
We pause here to note that public agencies are not required to seek judicial
validation of their contracts and related financial decisions. “Instead, an agency may
choose to do nothing and allow the agency decision or act to be validated by operation of
law based on the passage of time.” (Davis v. Fresno Unified School Dist. (2020) 57
4.
Cal.App.5th 911, 927.) In other words, “an agency may indirectly but effectively
‘validate’ its action by doing nothing to validate it[.]” (City of Ontario v. Superior Court
(1970) 2 Cal.3d 335, 341.) “[U]nless an ‘interested person’ brings an action of his own
under [Code of Civil Procedure] section 863 within [a] 60-day period, the agency’s action
will become immune from attack whether it is legally valid or not.” (Ibid.)
The reason Westlands filed a validation action was because of a clause in its draft
agreement with the Bureau. The provision stated: “Promptly after the execution of this
amended Contract, the Contractor [Westlands] will provide to the Contracting Officer
[the Bureau] a certified copy of a final decree of a court of competent jurisdiction in the
State of California, confirming the proceedings on the part of the Contractor for the
authorization of the execution of this amended Contract. This amended Contract shall
not be binding on the United States until the Contractor secures a final decree.”
Westlands’ validation complaint included the following prayer for relief:
“That judgment be entered determining that: … the Converted Contract,
[i.e., the draft attached as an exhibit] and each and every provision of said
Converted Contract, is valid under applicable California law; … all of the
proceedings of [Westlands] and its Board of Directors leading up to and
including the making and approval of said Converted Contract were in all
respects legal and valid; … [and] that said Converted Contract is in all
respects valid under applicable California law and binding upon the
respective parties thereto ….”
Four groups of defendants filed answers to the validation complaint: (1)
respondents; (2) the Counties of San Joaquin and Trinity (Counties); (3) a group led by
the California Water Impact Network (collectively CWIN); and (4) the Central Delta
Water Agency and the South Delta Water Agency (collectively, CDWA). All defendants
characterized the lawsuit as premature. They claimed the Bureau had not yet completed
its “review and decision-making” on the matter and had “extended an initial 60-day
comment period on Westlands’ ‘draft repayment contract’ until January 8, 2020.”
5.
Respondents alleged the actions taken by Westlands’ Board violated state and
federal environmental laws. Respondents further alleged Westlands had violated the
Ralph M. Brown Act (Gov. Code, § 54950 et seq.) (Brown Act) because “[n]one of the
Exhibits to the Contract were provided to the public, preventing informed public review
and comment.” The Counties argued the missing exhibits rendered the working draft
“materially incomplete.” Among other reasons, the amount of Westlands’ repayment
obligation was purported to be set forth in “Exhibit D” and was not otherwise stated in
the contract. CWIN likewise argued the draft was “incomplete” because it referenced
and relied upon exhibits that were missing and/or not yet finalized.
On December 30, 2019, Westlands filed a “Motion for Validation of Contract”
seeking entry of a judgment in its favor on all issues. The motion alleged compliance
with the Brown Act and included supporting evidence. Westlands also provided, for the
first time in the litigation, an estimate of its anticipated repayment obligation—an amount
exceeding $300 million. All defendants opposed the motion.
On February 26, 2020, the trial court issued a written tentative ruling to deny
Westlands’ motion. The motion was argued the following day, at which time counsel for
Westlands provided a revised estimate of its repayment obligation, stating it was “in the
$200 million range.” Counsel was unable to provide a more specific figure, and the
exhibits were either still unavailable or not produced for other unspecified reasons.
Despite the trial court’s tentative ruling, Westlands and the Bureau proceeded to
execute a revised and finalized version of the repayment contract (the WIIN Act
contract). This occurred on February 28, 2020, one day after the motion hearing.
However, the terms of the WIIN Act contract postponed its effective date until June 1,
2020. Due to the expiration of the sixth interim renewal contract on February 29, 2020,
Westlands and the Bureau executed a seventh interim renewal contract to cover the
period of March 1, 2020, through May 31, 2020. On June 11, 2020, after the WIIN Act
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contract had taken effect, Westlands satisfied its repayment obligation to the Bureau by
tendering the lump sum of $209,436,667, which the Bureau accepted as payment in full.
Meanwhile, in March 2020, the trial court denied Westlands’ validation motion.
Three reasons were given. First, the trial court interpreted Water Code section 35855 as
authorizing validation actions only for executed contracts, not “proposed” contracts. The
court did acknowledge, however, that Westlands was alternatively relying on
Government Code section 53511 to invoke the validation procedures of Code of Civil
Procedure section 860 et seq. Second, the so-called “proposed contract” was held to lack
certain essential terms and exhibits. Third, Westlands had not proven its alleged
compliance with the Brown Act.
The trial court also found that multiple defendants failed to answer to the
complaint within the statutory deadline. The affected parties (respondents, Counties, and
CWIN) appealed that portion of the ruling, which resulted in a stay of the proceedings
from approximately August 2020 through May 2021. The findings of untimeliness were
reversed by this court. (Westlands Water Dist. v. North Coast Rivers Alliance (Mar. 9,
2021, F081174) [nonpub. opn.]; Westlands Water Dist. v. County of San Joaquin (Mar. 9,
2021, F081181) [nonpub. opn.]; Westlands Water Dist. v. California Water Impact
Network (Mar. 9, 2021, F081182) [nonpub. opn.].)
In September 2021, Westlands filed a “Renewed Motion for Validation
Judgment.” A supporting attorney declaration identified the “new or different facts”
(Code Civ. Proc., § 1008, subd. (b)) as consisting of (1) execution of the WIIN Act
contract in February 2020; (2) the Westlands Board’s “adoption of Resolution 110-21 [on
June 15, 2021,] confirming that the execution and delivery of [the WIIN Act contract]
conformed fully with the authority granted by the Westlands Board in Resolution
No. 119-19”; and (3) “[i]nformation responsive to specific questions regarding Brown
Act compliance.” Westlands also submitted legislative history materials to refute the trial
court’s interpretation of Water Code section 35855.
7.
All defendants opposed the September 2021 motion. Respondents were among
those who argued the WIIN Act contract was not the agreement originally presented for
validation and, therefore, the issue of its validity was outside the scope of the litigation.
The trial court agreed, and the motion was denied. Further proceedings were held to
discuss the appropriate disposition of the case, and a judgment of dismissal was entered
in March 2022.
Westlands appealed from the judgment of dismissal. We will refer to that appeal
by the lead case number, F083632. As relevant here, this court concluded Westlands’
validation action was authorized by Government Code section 53511 because it
concerned a contract sufficiently related to government indebtedness. (Westlands Water
Dist. v. All Persons Interested, supra, 95 Cal.App.5th at p. 125.) Having so concluded,
this court did not reach the merits of the trial court’s interpretation of Water Code section
35855. (95 Cal.App.5th at p. 124.) In affirming the judgment, this court determined “the
contract presented for validation was missing an essential term and therefore uncertain,
i.e., not sufficiently definite to be binding and enforceable.” (Id. at p. 129.)
The decision in F083632 was initially unpublished. However, subsequent requests
for publication (made by all four groups of defendants) were granted. The California
Supreme Court denied Westlands’ petition for review, and the remittitur was issued on
November 30, 2023.
The Fees Dispute
In May 2022, while the appeal in F083632 was pending, respondents filed a
motion for attorney fees pursuant to section 1021.5. Westlands later stipulated to an
extension of time for the Counties and CWIN to seek attorney fees, and their motions
were filed in late July. The fourth group of defendants did not seek attorney fees.
Westlands opposed all three motions.
The motions were heard on November 8, 2022, and a written decision was issued
the following week. The trial court’s ruling addressed several requirements under section
8.
1021.5, only three of which are at issue in this appeal: (1) Were defendants “successful”
parties in the validation action? (2) Did defendants enforce or vindicate an “important
right affecting the public interest”? (3) Was a “significant benefit” conferred upon “the
general public or a large class of persons”?
As to the first issue, the trial court said, “[T]here is no question that defendants
were the ‘successful parties’ in the litigation, since they prevailed on their defenses and
obtained a judgment from the court denying Westlands’ request for validation of the
purported contract.” Elsewhere the court acknowledged the defendants did not prevail on
all their “defenses,” i.e., their various arguments against validation. But in reliance on
case law holding partial success can suffice, the court concluded the defendants
succeeded by persuading it to deny Westlands’ validation motions and to dismiss the
complaint.
The trial court’s reasoning was less clear with regard to the second and third
requirements. Rather than attempt to paraphrase its analysis, we quote the bulk of the
explanation provided:
“In this case, defendants succeeded in obtaining a ruling from the
court determining that the contract at issue did not qualify for validation
under Code of Civil Procedure section 860, et seq., or under Water Code
section 35855. In addition, the court found that the contract lacked material
terms, which made it unsuitable for validation. Furthermore, the court
found that Westlands’ [sic] had failed to show that its requested judgment
complied with the Brown Act. [Citation.]
“Thus, the judgment obtained by defendants vindicated important
rights affecting the public interest, including compliance with the
requirements of the validation statutes, the Water Code, and the Brown Act.
But for defendants’ successful opposition to the Complaint, Westlands
would have likely obtained a judgment validating its contract despite its
lack of compliance with the requirements of these statutes and the absence
of material terms in the contract. Such a judgment would have determined
once and for all the validity of the contract, which would not have been
subject to any further challenges other than a direct appeal of the judgment.
[Citation.] Defendants’ opposition also upheld the underlying policies of
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the Brown Act to provide transparency and accountability in public
contracts. The amount of money at stake in the contract was also very
substantial, as it involved over $350 million in financial obligations, as well
as rights to over one million acre-feet of water. As a result, the court
intends to find that defendants’ opposition to the validation action resulted
in the vindication of important rights affecting the public interest, as well as
conveying a significant public benefit to the general public or a large class
of persons.”
Elsewhere in the written decision, the trial court added these remarks: “[T]he
public gained significant benefits from defendants’ opposition, as Westlands was not able
to have its purported contract validated and thus protected from any further challenges in
perpetuity, regardless of the serious defects in the contract. Again, the contract involved
financial obligations worth hundreds of millions of dollars of public money, as well as
rights to a million acre-feet of water. Thus, defendants’ actions clearly benefitted the
general public, or at least a large number of people.”
Attorney fees were awarded to the Counties in the amount of $197,163.75.
Respondents’ fee award was $105,797.40. CWIN’s fee award was $104,370.
In December 2022, Westlands filed a timely notice of appeal. Westlands’ opening
brief was filed on June 5, 2023, two months prior to this court’s decision in F083632. All
the respondents’ briefs, as well as Westlands’ reply brief, were filed after the F083632
decision was issued and published. (See Westlands Water Dist. v. All Persons Interested,
supra, 95 Cal.App.5th 98 [publication status changed from unpublished to published on
Sept. 1, 2023].) Westlands settled its fee disputes with the Counties and CWIN prior to
the oral argument in this appeal.
DISCUSSION
I. Applicable Law
Section 1021.5 “is aimed at encouraging litigants to pursue meritorious public
interest litigation vindicating important rights and benefitting a broad swath of citizens,
and it achieves this aim by compensating successful litigants with an award of attorney’s
10.
fees [citations].” (La Mirada Avenue Neighborhood Assn. of Hollywood v. City of Los
Angeles (2018) 22 Cal.App.5th 1149, 1155–1156.) The statute provides, in relevant part:
“Upon motion, a court may award attorneys’ fees to a successful party
against one or more opposing parties in any action which has resulted in the
enforcement of an important right affecting the public interest if: (a) a
significant benefit, whether pecuniary or nonpecuniary, has been conferred
on the general public or a large class of persons, (b) the necessity and
financial burden of private enforcement, 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.)
The statutory language is understood to contain six elements. “A superior court
may award attorney fees to (1) a successful party in any action (2) that has resulted in the
enforcement of an important right affecting the public interest if (3) a significant benefit
has been conferred on the general public or a large class of persons, (4) private
enforcement is necessary because no public entity or official pursued enforcement or
litigation, (5) the financial burden of private enforcement is such as to make a fee award
appropriate, and (6) in the interests of justice the fees should not be paid out of the
recovery.” (Robinson v. City of Chowchilla (2011) 202 Cal.App.4th 382, 390, fn.
omitted.) The party seeking an award under section 1021.5 has the burden to establish all
applicable elements. (Vosburg v. County of Fresno (2020) 54 Cal.App.5th 439, 450.) As
in this case, the sixth element is sometimes inapplicable. (Woodland Hills Residents
Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 935.)
Only the first three elements are in dispute. Westlands does not address the fourth
or fifth elements, and the sixth element is not applicable. The amount of the award is not
being challenged in this appeal.
II. 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
11.
award is a question committed to the discretion of the trial court, unless the question turns
on statutory construction, which we review de novo.” (Collins v. City of Los Angeles
(2012) 205 Cal.App.4th 140, 152.) Westlands’ claims do not implicate the de novo
standard. Our task is to determine whether the trial court abused its discretion in finding
the elements of (1) success, (2) the enforcement of an important right, and (3) a
significant benefit to a large class of persons.
The trial court is ordinarily “in the best position to determine whether the criteria
have been met, and its determinations will not be disturbed ‘“unless the appellate court is
convinced that it is clearly wrong.”’” (County of Orange v. Barratt American, Inc.
(2007) 150 Cal.App.4th 420, 441.) An abuse of discretion may occur if a ruling is based
on irrelevant matter or factual findings “wholly unsupported by the evidence.”
(Waterwood Enterprises, LLC v. City of Long Beach (2020) 58 Cal.App.5th 955, 966.)
“We may not reverse, however, simply because some of the court’s reasoning was
faulty.” (Kaldenbach v. Mutual of Omaha Life Ins. Co. (2009) 178 Cal.App.4th 830,
844.) To warrant reversal, the erroneous reasoning must be critical to the ruling and the
record must indicate “that a different result would have been probable if such error …
had not occurred or existed.” (Code Civ. Proc., § 475.)
III. Analysis
A. Success
As used in section 1021.5, “successful party” means the prevailing party in a legal
action, i.e., “the party to litigation that achieves its objectives.” (Graham v.
DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 571.) When a lawsuit is resolved by
dismissal of the plaintiff’s complaint, the defendant “is not necessarily a prevailing party,
[but] it may be under some circumstances.” (Ibid.) “In order to effectuate the purpose of
section 1021.5, courts ‘have taken a broad, pragmatic view of what constitutes a
12.
“successful party.”’” (Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173, 178,
quoting Graham, supra, at p. 565.)
In the most basic sense, respondents succeeded by preventing Westlands from
obtaining the validation judgment requested in its complaint. Disputing their status as
“successful” parties for purposes of section 1021.5, Westlands focuses on respondents’
broader objective of disrupting or altering its contractual relationship with the Bureau.
Westlands relies on language from this district’s opinion in Ebbetts Pass Forest Watch v.
Department of Forestry & Fire Protection (2010) 187 Cal.App.4th 376: “[I]n
determining whether a party is successful, the court must critically analyze the
surrounding circumstances of the litigation and pragmatically assess the gains achieved
by the action.” (Id. at p. 382.)
It is no secret that respondents are opposed to Westlands’ operations because of
the environmental impact of the use of CVP water by Westlands’ constituents. The
parties have been embroiled in litigation for over a decade, in both state and federal court,
regarding Westlands’ ongoing contractual relationship with the Bureau. (Westlands
Water Dist. v. All Persons Interested, supra, 95 Cal.App.5th at pp. 108–109, 111.)
Respondents essentially admit they hoped Westlands’ inability to obtain a validation
judgment would alter the contractual relationship, and respondents’ failure to achieve that
goal is why Westlands insists they were unsuccessful.
As discussed, the draft agreement Westlands sought to have validated contained a
provision stating the Bureau would not be bound by the agreement unless Westlands
secured a validation judgment “confirming the proceedings on the part of [Westlands] for
the authorization of the execution of [the contract].” The WIIN Act contract contains the
same language. It now appears this was more of a boilerplate provision than a potentially
deal-breaking requirement,1 and Westlands submitted evidence to that effect in
1As previously noted, the Bureau entered into the WIIN Act contract despite the trial
court’s tentative ruling to deny Westlands’ first validation motion, and it later accepted
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opposition to the fee motions. Nevertheless, there is some distinction between the
litigation objective of preventing Westlands from obtaining a validation judgment (which
was achieved) and what respondents hoped would occur as a practical consequence of
that outcome.
Respondents submit they “were limited to the sole remedy of preventing
validation” and “won all the relief they had sought.” Westlands counters that respondents
and other defendants “each sought far more than mere dismissal of the action in their
respective Answers and briefing.” For example, respondents’ answer included a request
for a judgment “‘invalidating [the Westlands Board’s] actions … and the Converted
Contract with the United States.’”
One test for determining whether a party is successful is to “look at the outcomes
the parties sought in commencing the action, the situation before the party commenced
the suit, and the situation today.” (People v. Investco Management & Development LLC
(2018) 22 Cal.App.5th 443, 458.) Although respondents may have had loftier goals than
merely preventing Westlands from achieving its litigation objectives, their answer prayed
for Westlands to “take nothing” by way of the validation complaint. They succeeded in
preventing Westlands from obtaining any relief under the complaint.
“It is well settled that partially successful [litigants] may recover attorney fees
under section 1021.5.” (Bowman v. City of Berkeley, supra, 131 Cal.App.4th at p. 177.)
Limited success “is a factor considered in determining the amount of any fee award,” and
the amount of fees awarded is not at issue here. (Robinson v. City of Chowchilla, supra,
202 Cal.App.4th at p. 393, italics added.) Because respondents achieved a basic litigation
Westlands’ lump payment of over $209 million. The Bureau has also “reportedly taken the
position that the WIIN Act contract ‘“will govern the rights and obligations of the United States
and [Westlands] … notwithstanding [Westlands’] inability to obtain a final decree confirming its
proceedings to authorize the execution of [the WIIN Act contract].”’” (Westlands Water Dist. v.
All Persons Interested, supra, 95 Cal.App.5th at pp. 112–113.)
14.
objective, the trial court had discretion to find the threshold requirement of success was
met.
B. Important Right Affecting the Public Interest
To satisfy the second requirement, the lawsuit must have “resulted in the
enforcement of an important right affecting the public interest.” (§ 1021.5.) In case law
this element is sometimes phrased in terms of vindicating or effectuating an important
public policy. (E.g., Vasquez v. State of California, supra, 45 Cal.4th at p. 250; Serrano
v. Priest (1977) 20 Cal.3d 25, 45.) Section 1021.5 thus applies to rights that are
“constitutional in origin,” and “also to statutory rights as well as important public
policies.” (California Common Cause v. Duffy (1987) 200 Cal.App.3d 730, 745; see
Grossmont Union High School Dist. v. Diego Plus Education Corp. (2023) 98
Cal.App.5th 552, 576 [“The ‘important public right’ can have any legal source,
‘constitutional, statutory or other’”].)
Attorney fees cannot be awarded “based on trivial or peripheral public policies.”
(Marini v. Municipal Court (1979) 99 Cal.App.3d 829, 836.) Likewise, “section 1021.5
does not afford relief for ‘the enforcement of “any” or “all” statutory rights. [Rather] …
the statute directs the judiciary to exercise judgment in attempting to ascertain the
“strength” or “societal importance” of the right involved.’” (Bui v. Nguyen (2014) 230
Cal.App.4th 1357, 1366, quoting Woodland Hills Residents Assn., Inc. v. City Council,
supra, 23 Cal.3d at p. 935.) It follows that ensuring statutory compliance in a given case
does not necessarily rise to the level of enforcing an important right affecting the public
interest.
The trial court found the important rights “vindicated” by respondents’ litigation
efforts were “compliance with the requirements of the validation statutes, the Water
Code, and the Brown Act.” Respondents were said to have “upheld the underlying
policies of the Brown Act to provide transparency and accountability in public contracts.”
15.
No other reasons were given except that “[t]he amount of money at stake in the contract
was also very substantial, as it involved over $350 million in financial obligations, as
well as rights to over one million acre-feet of water.” The trial court distinguished some
of the cases cited in Westlands’ opposition briefs, and in doing so noted “there were
several serious defects in [Westlands’] purported contract that prevented the court from
validating it.”
There are two main policy considerations associated with California’s validation
statutes. First is the need for expediency in determining whether a public agency’s
decisions are lawful. (Friedland v. City of Long Beach (1998) 62 Cal.App.4th 835, 842.)
“A key objective of a validation action is to limit the extent to which delay due to
litigation may impair a public agency’s ability to operate financially.” (Id. at p. 843.)
Second is the importance of procedural uniformity. “From their inception, the validation
statutes were enacted to standardize the procedure by which public agencies established
the validity of certain actions.” (Reid v. City of San Diego (2018) 24 Cal.App.5th 343,
374; see Katz v. Campbell Union High School Dist. (2006) 144 Cal.App.4th 1024, 1028
[“The validation procedure is intended to provide a uniform mechanism for prompt
resolution of the validity of a public agency’s actions”].) Respondents did nothing to
promote the first policy (two years and four months elapsed between the filing of the
complaint and entry of judgment), but one could reasonably conclude they helped enforce
the second policy.
“Public agency contracts involving financing and financial obligations are
frequently the subject of validation actions.” (California Commerce Casino, Inc. v.
Schwarzenegger (2007) 146 Cal.App.4th 1406, 1422, fn. 15.) Westlands sought to have
such a contract deemed binding and enforceable through the validation process despite
the contract being in draft form and missing essential financial terms. Respondents
challenged the propriety of this, and Westlands insisted it was perfectly acceptable. The
16.
trial court and this court both sided with respondents, and their success could be viewed
as the enforcement of an important right or policy affecting the public interest.
We next consider the Brown Act. “The policy underlying the Brown Act is that
public boards and agencies exist to aid in the conduct of the people’s business; the law is
intended to mandate open and public actions and deliberations.” (Page v. MiraCosta
Community College Dist. (2009) 180 Cal.App.4th 471, 505.) As we discuss in the next
part, the Brown Act has its own statutory scheme for the enforcement of this policy, and
this was not a Brown Act case. But transparency in local government decisionmaking,
and specifically regarding financial matters, is both important and broadly applicable in
other contexts. (See Travis v. Brand (2023) 14 Cal.5th 411, 422 [generally noting “the
important public policy of transparency”]; International Federation of Professional &
Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 331
[citing “the strong public policy supporting transparency in government” in lawsuit
involving disclosure of city employees’ salaries].)
Furthermore, the evidence in the trial court record allowed it to reasonably
conclude the policy of “transparency and accountability in public contracts” was not
peripheral to the issues in the case. The answers to the complaint highlighted Westlands’
failure to disclose the contract exhibits showing its repayment obligation to the Bureau.
The Counties’ opposition to Westlands’ first validation motion was supported by a 12-
page attorney declaration addressing “the incomplete and indefinite nature of the
proposed contract Westlands [sought] to validate.” Attached to the declaration were
copies of letters respondents and others had sent to the Bureau during the public comment
period regarding the anticipated contract and addressing the same issue. In a letter sent
by respondents and CWIN in January 2020, they complained about the nondisclosure of
“even the most rudimentary elements of the proposed draft contract and exhibits.” The
letter also said, “We urge you to deny the Westlands’ contract conversion [sic] and [ask]
that the process be restarted with proper public transparency ….”
17.
Lastly, the second and third elements of section 1021.5 may “to some extent
dovetail” when the significant benefit (the third element) is nonpecuniary. (La Mirada
Avenue Neighborhood Assn. of Hollywood v. City of Los Angeles, supra, 22 Cal.App.5th
at p. 1158.) In the next part we discuss the significance of the parties’ dispute ultimately
resulting in a published opinion. “The fact we or some other appellate court decides to
publish an opinion does not conclusively establish the underlying action ‘vindicated an
important right’ … [but] it is strong evidence on that question.” (Los Angeles Police
Protective League v. City of Los Angeles (1986) 188 Cal.App.3d 1, 12; accord, Doe v.
Westmont College, supra, 60 Cal.App.5th at p. 764 [“The publication of an opinion
suggests that the case involved a matter of public importance”]; Protect Our Water v.
County of Merced (2005) 130 Cal.App.4th 488, 495, fn. 8; see Serrano v. Stefan Merli
Plastering Co., Inc., (2011) 52 Cal.4th 1018, 1029 [favorably citing City of Los Angeles
but stating publication “is only one factor to be considered in that regard”].)
For the reasons discussed, the trial court permissibly found the validation action
resulted in the enforcement of an important right affecting the public interest.
C. The “Significant Benefit” Requirement
It was respondents’ burden to show the lawsuit somehow conferred “a significant
benefit, whether pecuniary or nonpecuniary … on the general public or a large class of
persons.” (§ 1021.5.) “The ‘extent of the public benefit’ from the lawsuit must be
‘substantial,’ but ‘need not be great.’” (La Mirada Avenue Neighborhood Assn. of
Hollywood v. City of Los Angeles, supra, 22 Cal.App.5th at p. 1158.) Examples from
case law of significant, nonpecuniary benefits include:
“(1) the enforcement of constitutional rights requiring that financing be
equalized among school districts in California [citation]; (2) requiring
compliance with the California Environmental Quality Act by proper
submission of an environmental impact report [citation]; (3) ordering that a
subdivision map conform to a general plan [citation]; (4) directing the
adoption of an open space plan as required by statute [citation]; (5) [a]
judgment vindicating rights to unemployment benefits [citation]; [and] (6)
18.
[a] judgment vindicating jail inmates’ rights to reasonable exercise
periods.” (Braude v. Automobile Club of Southern Cal. (1986) 178
Cal.App.3d 994, 1011–1012.)
A trial court must “determine the significance of the benefit, as well as the size of
the class receiving benefit, from a realistic assessment, in light of all the pertinent
circumstances, of the gains which have resulted in a particular case.” (Woodland Hills
Residents Assn., Inc. v. City Council, supra, 23 Cal.3d at pp. 939–940.) An appellate
court “must review the entire record, paying particular attention to the trial court’s stated
reasons” for its decision. (Coalition for a Sustainable Future in Yucaipa v. City of
Yucaipa (2015) 238 Cal.App.4th 513, 519–520.) For us the “pertinent question” is
whether the trial court’s reasoning, given all the facts, “is within the range of discretion”
conferred upon it by section 1021.5. (238 Cal.App.4th at p. 520.)
The trial court’s significant benefit analysis was basically as follows (paragraph
breaks added for readability):
“[T]he judgment obtained by defendants vindicated important rights
affecting the public interest, including compliance with the requirements of
the validation statutes, the Water Code, and the Brown Act. But for
defendants’ successful opposition to the Complaint, Westlands would have
likely obtained a judgment validating its contract despite its lack of
compliance with the requirements of these statutes and the absence of
material terms in the contract. Such a judgment would have determined
once and for all the validity of the contract, which would not have been
subject to any further challenges other than a direct appeal of the
judgment.”
“Defendants’ opposition also upheld the underlying policies of the Brown
Act to provide transparency and accountability in public contracts. The
amount of money at stake in the contract was also very substantial, as it
involved over $350 million in financial obligations, as well as rights to over
one million acre-feet of water.…”
“… Also, the public gained significant benefits from defendants’
opposition, as Westlands was not able to have its purported contract
validated and thus protected from any further challenges in perpetuity,
regardless of the serious defects in the contract. Again, the contract
involved financial obligations worth hundreds of millions of dollars of
19.
public money, as well as rights to a million acre-feet of water. Thus,
defendants’ actions clearly benefitted the general public, or at least a large
number of people.”
Although some policies underlying the Brown Act have broader application and
are thus relevant to the benefit analysis, the issue of Brown Act compliance is not.
Westlands aptly notes it was never found to have violated the Brown Act. Westlands
affirmatively moved for a determination that its Board complied with all applicable laws,
including the Brown Act, and the trial court ruled Westlands’ evidence on the issue was
insufficient. In other words, Westlands failed to meet its burden as the moving party.
This was not a Brown Act case. If it were, Westlands would have needed to be
given the opportunity “to cure or correct the action alleged to have been taken in
violation of the [Brown Act]” before incurring liability. (Boyle v. City of Redondo Beach
(1999) 70 Cal.App.4th 1109, 1117, discussing Gov. Code, § 54960.1.) If the accused
party cures or corrects the alleged violation after being given the opportunity to do so,
“the action shall be dismissed and such cure or correction shall not be construed as
evidence of a violation of the Brown Act.” (Ibid.)
Furthermore, section 1021.5 “will not provide an independent basis for an attorney
fee award when there are already existing specific statutory fees provisions that apply.”
(Community Youth Athletic Center v. City of National City (2013) 220 Cal.App.4th 1385,
1442.) The Brown Act contains its own attorney fee provision to compensate litigants
who help enforce its requirements. (Gov. Code, § 54960.5; Galbiso v. Orosi Public
Utility Dist. (2008) 167 Cal.App.4th 1063, 1077.) It would be improper to award
attorney fees under section 1021.5 based on unadjudicated Brown Act compliance issues.
(Cf. Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 690 [“because
[Government Code] section 54960.5 expressly provides statutory authorization for
recovery of attorney fees and costs for Brown Act violations, the trial court improperly
relied alternatively on Code of Civil Procedure section 1021.5”].) To merely state in a
nonprecedential ruling that parties subject to the Brown Act must comply with its
20.
provisions does not confer a significant benefit upon a large class, especially in a case
where no findings of noncompliance were made.
The trial court’s interpretation of Water Code section 35855 had no precedential
value and was not considered on the merits in F083632. (Westlands Water Dist. v. All
Persons Interested, supra, 95 Cal.App.5th at p. 124.) As such, its conclusion regarding
whether the statute applies to “proposed contracts” did not satisfy the significant benefit
requirement of section 1021.5. (See, e.g., Norberg v. California Coastal Com. (2013)
221 Cal.App.4th 535, 542 [agreeing with appellant “that the trial court’s decision has no
precedential value and, consequently, does not confer a substantial benefit, or any benefit,
on a large class of persons”].) The trial court equivocated on whether Westlands could
independently maintain its validation action under Government Code section 53511, but
that issue was resolved in Westlands’ favor on appeal. (Westlands Water Dist., at pp.
124–125.) Because Westlands’ compliance with the Water Code was a secondary issue
confined to this particular case and nonessential to the outcome, the finding of
noncompliance cannot reasonably be viewed as significantly beneficial to a large class of
people.
The trial court’s statement regarding “compliance with the requirements of the
validation statutes” is unclear. The record does not indicate Westlands failed to comply
with the validation statutes. Government Code section 53511, subdivision (a) permits
local agencies to “bring an action to determine the validity of its … contracts … pursuant
to Chapter 9 (commencing with Section 860) of Title 10 of Part 2 of the Code of Civil
Procedure.” Westlands’ problem was not a failure to comply with Code of Civil
Procedure section 860 et seq. The problem was its complaint sought relief that could not
be granted because the contract in question was materially incomplete.
The trial court’s remaining explanation concerned Westlands’ failure to obtain a
validation judgment: “[T]he public gained significant benefits from defendants’
opposition, as Westlands was not able to have its purported contract validated and thus
21.
protected from any further challenges in perpetuity, regardless of the serious defects in
the contract. Again, the contract involved financial obligations worth hundreds of
millions of dollars of public money, as well as rights to a million acre-feet of water.”
Westlands argues the trial court failed to appreciate that its refusal to validate the
2019 draft version of the repayment contract had no practical effect on Westlands’ and
the Bureau’s subsequent execution of, and performance under, the 2020 WIIN Act
contract. The subject matter of the case was the earlier draft, which is why the trial court
denied Westlands’ renewed validation motion in late 2021. It refused to consider the
validity of the WIIN Act contract because the WIIN Act contract was not the agreement
originally presented for validation with the complaint. (See Westlands Water Dist. v. All
Persons Interested, supra, 95 Cal.App.5th at pp. 122–123, 133–134.)
In light of its contractual relationship with the Bureau before and after the
validation action, Westlands argues respondents’ efforts and the action itself “did not
change the expenditure of a single dollar, the destination of a single drop of water[,] or
have any impact on any of [respondents’] myriad of environmental claims ….” The
argument is quite cogent. How does anyone outside the litigation benefit if nothing has
changed?
At the time of the fee motions, the uncontroverted evidence showed Westlands
and the Bureau had been performing under the WIIN Act contract for over two years.
Both Westlands and respondents also informed the trial court of the pending action in the
United States District Court for the Eastern District of California (case No. 1:16-cv-
00307) concerning the legality of the WIIN Act contract and other converted contracts
between the Bureau and other CVP contractors. (See Westlands Water Dist. v. All
Persons Interested, supra, 95 Cal.App.5th at pp. 109–111 [discussing “the federal court
action”].) The real fight over the validity of Westlands’ repayment contract was (and still
is) taking place in a separate lawsuit.
22.
Respondents have struggled to explain how the significant benefit requirement
was met in this case. Their initial briefing of the issue did little more in substance than
quote the trial court’s ruling and claim its reasoning was sound. However, in response to
our invitation for supplemental briefing, both sides have now addressed the significance
of the published opinion in F083632, i.e., Westlands Water Dist. v. All Persons
Interested, supra, 95 Cal.App.5th 98. Our analysis turns on the following principle: “[A]
published opinion that clarifies and/or expands the law is probative of whether the fee
claimant has satisfied the substantial benefit concept underlying section 1021.5.”
(Schmier v. Supreme Court (2002) 96 Cal.App.4th 873, 879; see, e.g., McCormick v.
Public Employees’ Retirement System, supra, 90 Cal.App.5th at pp. 1007, 1010; Early v.
Becerra (2021) 60 Cal.App.5th 726, 739; Robinson v. City of Chowchilla, supra, 202
Cal.App.4th at pp. 397–398; Wilkerson v. City of Placentia (1981) 118 Cal.App.3d 435,
444–445.)
The main issue in F083632 was whether the trial court properly refused to validate
the draft agreement presented with Westlands’ complaint because it was missing essential
terms. (Westlands Water Dist. v. All Persons Interested, supra, 95 Cal.App.5th at pp.
103–104, 125–132.) The necessity of discernable material terms for an agreement to be
binding and enforceable is basic contract law. (See id. at pp. 126–127; Civ. Code,
§ 3390, subd. (e).) Yet Westlands insisted, both in the lower court and on appeal, that its
draft repayment contract could be validated despite the absence of key terms regarding its
financial obligations. There was scant authority relevant to that issue, which to our
knowledge was a question of first impression.
Westlands argued its position was supported by Metropolitan Water Dist. v.
Marquardt (1963) 59 Cal.2d 159. In rejecting the argument, this court said, “We do not
read Marquardt to suggest a public agency may obtain a judgment confirming the
validity of a contract, the primary focus of which is the accelerated repayment of a
multimillion dollar debt, when the contract does not state the amount owed and/or the
23.
amount to be repaid.” (Westlands Water Dist. v. All Persons Interested, supra, 95
Cal.App.5th at p. 130.) It is easy to envision the potential for mischief if public entities
were able to have incomplete financial agreements validated and later insert the essential
financial terms once the contracts are immune from legal attack. (See Code Civ. Proc.,
§ 870, subd. (a) [validation judgments are “forever binding and conclusive[] as to all
matters therein adjudicated”].)
The published opinion in F083632 is reasonably viewed as “clarifying existing
law and requiring it to be followed.” (McCormick v. Public Employees’ Retirement
System, supra, 90 Cal.App.5th at p. 1010.) It also addressed an issue related to the
important public policies of governmental transparency and ensuring uniformity in
statutory validation procedures. Because the lawsuit resulted in the published opinion,
the result may be viewed as having conferred a “significant benefit … on the general
public or a large class of persons.” (§ 1021.5.)
We are placed in an odd position by the trial court’s finding of a different (and
unclear) benefit. Also, section 1021.5 “requires the claimant to show that the principal
action ‘has resulted’ in the enforcement of an important right and that a significant
benefit ‘has been conferred.’ [Citation.] That showing cannot be made until the benefit
is secure, in some cases after judgment is final.” (Folsom v. Butte County Assn. of
Governments (1982) 32 Cal.3d 668, 679.)
“Normally an appeal reviews the correctness of a [ruling] at the time it is rendered
and matters occurring later are irrelevant.” (Grant v. List & Lathrop (1992) 2
Cal.App.4th 993, 998.) There is an exception in section 1021.5 cases when a ruling is
affected by subsequent appellate proceedings. This is illustrated by the circumstances in
Robinson v. City of Chowchilla, supra, 202 Cal.App.4th 382.
In Robinson, an appeal of the underlying merits decision was pending when the
trial court denied the plaintiff’s request for attorney fees under section 1021.5. (Robinson
v. City of Chowchilla, supra, 202 Cal.App.4th at pp. 388–389, 397; see Robinson v. City
24.
of Chowchilla (2011) 202 Cal.App.4th 368, 374 (Robinson I) [merits appeal filed in
January 2010].) The trial court found the “important right” and “significant benefit”
requirements were not met, and the plaintiff appealed the denial of a fee award.
(Robinson v. City of Chowchilla, supra, 202 Cal.App.4th at pp. 392–393.) As in this
case, there was an overlap in the pendency of both appeals.
This district partially published its decision resolving a claim asserted by the
defendant in the merits appeal, Robinson I, supra, 202 Cal.App.4th 368. In the fees
appeal, the trial court’s section 1021.5 ruling was reversed based on the appellate panel’s
conclusion the published opinion in Robinson I satisfied the second and third elements of
section 1021.5. (Robinson v. City of Chowchilla, supra, 202 Cal.App.4th at pp. 396–
399.) It was noted the trial court’s denial of the fees motion was not based on “‘all the
pertinent circumstances’” because it did not know the litigation “would produce a
published decision.” (Id. at pp. 397–398.) The case was remanded for the trial court to
evaluate the elements not decided in its prior ruling. However, the “important right” and
“significant benefit” elements were not subject to reconsideration on remand; the
appellate panel determined those issues itself. (See id. at pp. 387, 396 [“the motion for
attorney fees cannot be denied on the ground that [plaintiff] failed to satisfy the
‘important right’ criterion”]; 399 [“we conclude that [plaintiff’s] lawsuit satisfied the
‘significant benefit’ element”].)
Where a fee award would be based on the action resulting in a published opinion,
the appellate court may determine the elements of section 1021.5 itself. (Laurel Heights
Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 426–427;
e.g., City of Oakland v. Oakland Police & Fire Retirement System (2018) 29 Cal.App.5th
688, 709–712.) We do not, and need not, make the “significant benefit” determination
ourselves. It is sufficient that reasonable minds could reach opposite conclusions, i.e.,
that finding in favor of respondents would not be erroneous as a matter of law.
25.
“‘The abuse-of-discretion standard requires us to uphold a ruling which a
reasonable judge might have made, even though we would not have ruled the same and a
contrary ruling would also be sustainable.’” (Harman v. City and County of San
Francisco (2007) 158 Cal.App.4th 407, 428; accord, Save Our Uniquely Rural
Community Environment v. County of San Bernardino (2015) 235 Cal.App.4th 1179,
1184 [“The trial court’s ruling will not be reversed if reasonable people could disagree as
to the proper outcome”].) We have upheld the trial court’s findings on the first two
elements; the other elements are not at issue, and Westlands has not challenged the
amount of the award. A remand for the purpose of considering grounds upon which a fee
award could be based, when the trial court has already concluded the recovery of fees is
warranted, would be futile.
In its supplemental briefing, Westlands relies on Leiserson v. City of San Diego
(1988) 202 Cal.App.3d 725. But the party seeking fees in Leiserson was unsuccessful in
both his tort action for damages and an appeal of the merits judgment that resulted in a
published opinion. (Id. at pp. 729–730.) The denial of fees under section 1021.5 was
upheld in a second appeal because “his primary intent for pursuing the litigation was to
advance his own personal economic interest,” and he had “fail[ed] to prevail in any
manner within his chosen context.” (Id. at p. 738.)
The Leiserson case is superficially helpful to Westlands insofar as the appellate
court said, “It would be patently absurd for entitlement to attorney’s fees under section
1021.5 to be predicated upon our fortuitous decision” to publish the earlier opinion.
(Leiserson v. City of San Diego, supra, 202 Cal.App.3d at p. 738.) However, the remarks
about fortuity were made “in light of the narrow focus of Leiserson’s tort pleadings.”
(Ibid.) And unlike in this case, the appellate court “conclude[d] as a matter of law
Leiserson was not a ‘successful’ party within the meaning of section 1021.5.” (Id. at p.
729.) Westlands’ reliance upon Leiserson is directly tied to its argument that respondents
were not successful in the validation action, which we have rejected.
26.
While there is a strange irony in the fact there would be no published opinion had
Westlands not appealed the earlier judgment of dismissal, such circumstances have been
held to be “irrelevant.” (Doe v. Westmont College, supra, 60 Cal.App.5th at p. 765.) It
could be said respondents’ “defense of the judgment resulted in a published opinion.”
(Ibid.) The Robinson case involved a similar scenario. There, both sides appealed from a
judgment on the merits, but the partially published opinion satisfying the “important
right” and “significant benefit” requirements only addressed a claim made by the party
against whom fees were being sought. (See Robinson v. City of Chowchilla, supra, 202
Cal.App.4th at pp. 386–387 [fees appeal]; Robinson I, supra, 202 Cal.App.4th at pp.
370–371, 374–381 [merits appeal].)
IV. Westlands’ Request for Judicial Notice
Westlands has requested judicial notice of the complaint and judgment in Santa
Clara Superior Court case No. 20CV367598, Santa Clara Valley Water District v. All
Persons Interested. The unopposed request is hereby granted. (Evid. Code, § 452, subd.
(d).) Those documents reflect that Santa Clara Valley Water District filed an uncontested
validation action regarding a contract entered into with the Bureau pursuant to the WIIN
Act, and a judgment was entered as prayed for in its complaint. Westlands contends the
documents are “relevant to the appeal because they show that a contract in substantially
the same form as the contract at issue in this case … was validated by the Superior Court
of Santa Clara County on April 21, 2023.”
We do not agree the Santa Clara case involved a contract “in substantially the
same form” as the contract in this case. The contract attached to Westlands’ validation
complaint was missing exhibits concerning its financial obligations under the agreement.
The contract attached to the complaint in the Santa Clara case was not missing any
exhibits; it included exhibits pertaining to the plaintiff’s financial obligations under the
27.
agreement. The judicially noticed records do not change our analysis of the fee dispute in
this case.
DISPOSITION
The trial court’s decision to award attorney fees pursuant to Code of Civil
Procedure section 1021.5 is affirmed. The parties shall bear their own appellate costs.
(See Cal. Rules of Court, rule 8.278(a)(5).)
PEÑA, Acting P. J.
WE CONCUR:
SMITH, J.
SNAUFFER, J.
28.