# Save Petaluma v. City of Petaluma CA1/2

> California Court of Appeal · August 5, 2025

URL: https://www.frixlaw.com/law-library/cases/11114666

## Case

- **Court:** California Court of Appeal
- **Decided:** August 5, 2025
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Filed 8/5/25 Save Petaluma v. City of Petaluma CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

SAVE PETALUMA,
Plaintiff and Respondent,
A169925
v.
CITY OF PETALUMA, (Sonoma County
Super. Ct. No. SCV-264378)
Defendant and Appellant.
SAFEWAY INC.,
Real Party in Interest and
Appellant.

The City of Petaluma (the City) and Safeway Inc. (Safeway) appeal
from orders awarding costs (Code Civ. Proc.,1 § 1032) and private attorney
general fees (§ 1021.5) to a local citizens group, Save Petaluma, that sued
them. The suit challenged the City’s approval of Safeway’s proposal to build
a 16-pump gas station without requiring preparation of an environmental
impact report (EIR) under the California Environmental Quality Act, Public
Resources Code section 21000, et seq. (CEQA).
The City and Safeway challenge the rulings on virtually every ground
on which they opposed an award of costs and fees below. But they fail to

Except as otherwise indicated, all further statutory references are to
1

the Code of Civil Procedure.

1
grapple with the trial court’s findings, Save Petaluma’s arguments and
authorities or the standard of review, and ultimately do not show the trial
court abused its discretion. We therefore affirm.
BACKGROUND
In May 2019, a citizens group called Save Petaluma comprised of
residents of the City, sued the City and Safeway, challenging the City’s
approval of a 16-pump gas station Safeway sought to build in close proximity
to two daycare centers, an elementary school and homes. The complaint
alleged all of the following: The project would dispense approximately 8.5
million gallons of gasoline and diesel fuels per year and posed significant
health risks to nearby residents, children and teachers as well as other
environmental impacts. Despite these “disturbing health risk implications”
and other environmental impacts, the City ultimately approved the project
without an EIR, although CEQA required one in these circumstances. The
city council had initially voted unanimously to require an EIR for the project
but reversed its vote in closed session after Safeway carried out a “campaign
of intimidation,” threatening that if the City did not change course Safeway
would immediately file suit, fast track discovery and depositions and subject
the City to “ ‘tens of millions of dollars of damage.’ ” “[A]bsent enforcement
by [Save Petaluma], Safeway [would] proceed with a project that [would]
cause significant, unmitigated human health and environmental impacts
that might otherwise have been reduced or avoided through legally adequate
environmental review and the adoption of feasible mitigation measures.”
Save Petaluma asserted two causes of action. The first claimed a
violation of CEQA because the City failed to prepare an EIR despite the
project’s potential impacts on air emissions, human health, transportation,
traffic safety and hazardous materials and instead issued a mitigated
2
negative declaration. Second, Save Petaluma sought a writ of administrative
mandate under section 1094.5, alleging the City failed to conduct a fair
hearing and abused its discretion in approving the project because the city
council members improperly based their decision on Safeway’s threats of
litigation rather than on the record.
Save Petaluma sought a writ requiring the City to vacate and set aside
all project approvals, to comply with CEQA by preparing legally adequate
environmental documents, in the meantime to refrain from issuing any
further permits for the project and to hold a new public hearing free from
undue influence and errors of law. It also prayed for a stay and provisional
and/or permanent injunction barring the City and Safeway from proceeding
with any activity on the project pending the litigation and compliance with
CEQA. Safeway’s counsel promptly informed Save Petaluma it would
represent both the City and Safeway in the case.
As described by the trial court, there was “extensive litigation in the
early stages of the case in 2019 and 2020,” including both a special motion to
strike the complaint and a demurrer challenging the lawsuit on numerous
substantive grounds. In October 2019, the court rejected both in an order
that also granted Save Petaluma’s motion for an administrative stay and a
preliminary injunction halting activities on the project to preserve the status
quo. After that, the City and Safeway suffered additional litigation setbacks.
They filed a writ petition challenging the court’s decision on all three
matters, which we summarily denied. Save Petaluma sought and was
granted leave to conduct discovery and then partially succeeded on a motion
to compel further discovery responses.
On April 1, 2021, the City’s approval for the project expired. A few
weeks later, the City and Safeway notified Save Petaluma the approval had
3
expired and that “Safeway will no longer be pursuing the gas station project.”
They advised that the case was therefore moot and requested a stipulated
dismissal with prejudice. The parties conferred but were unable to reach a
stipulation because they disagreed as to whether Save Petaluma was the
prevailing party.
At a subsequent case management conference, the City and Safeway
advised the court that the approval had expired and the case was moot. Two
years later, in July 2023, Save Petaluma filed a request for voluntary
dismissal and the action was dismissed. Next, both sides sought to recover
their costs as a prevailing party under section 1032 and filed competing
motions to strike or tax the other side’s costs. Save Petaluma also filed a
motion to recover its attorney fees under section 1021.5, the private attorney
general statute.
The trial court found that Save Petaluma was the prevailing party for
costs purposes. On that basis, it granted Save Petaluma’s motion to strike or
tax the City’s and Safeway’s costs and denied their competing motion to
strike Save Petaluma’s costs, awarding Save Petaluma $7,670.55 in costs.
The court also found that Save Petaluma was the prevailing party for
attorney fee purposes under section 1021.5. Applying a 1.5x multiplier to a
portion of Save Petaluma’s lodestar figure, it awarded Save Petaluma
$613,893.75 in fees. The City and Safeway (collectively, appellants) timely
appealed from the cost and fee orders.
DISCUSSION
I.
The Cost Award
Under section 1032, a prevailing party is entitled as a matter of right to
recover costs. (§ 1032, subd. (b).) The statute states that “unless the context
4
clearly requires otherwise,” the phrase “ ‘[p]revailing party’ includes the party
with a net monetary recovery, a defendant in whose favor a dismissal is
entered, a defendant where neither plaintiff nor defendant obtains any relief,
and a defendant as against those plaintiffs who do not recover any relief
against that defendant. If any party recovers other than monetary relief and
in situations other than as specified, the ‘prevailing party’ shall be as
determined by the court, and under those circumstances, the court, in its
discretion, may allow costs or not and, if allowed, may apportion costs
between the parties on the same or adverse sides pursuant to rules adopted
under Section 1034.” (Id., subd. (a)(4), italics added.)
Generally, a trial court’s determination that a litigant is a prevailing
party under section 1032, along with its award of fees and costs, is reviewed
for abuse of discretion. (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332.)
But where the issue involves the interpretation of a statute, the issue
presents a question of law that we review de novo. (Ibid.)
In challenging the cost award, appellants’ principal argument is that
they were the parties “in whose favor a dismissal [was] entered” (§ 1032,
subd. (a)(4)) (hereafter § 1032(a)(4)) and as such were the prevailing parties
under section 1032. As a consequence, they assert, (i) they were entitled to
their costs as a matter of right, and (ii) the trial court had no discretion to
decide Save Petaluma was the prevailing party and award it its costs,
because this was not a “situation[] other than as specified” for purposes of
section 1032(a)(4). (Ibid.)2 Save Petaluma does not dispute those

2 The City and Safeway assert only that they were entitled to costs as
of right because of the dismissal. They have thus abandoned any argument
that they were entitled to an award of costs on any other ground. (See Meeks
5
consequences if the City and Safeway meet the definition of a prevailing
party. The question here is whether they do.
We start with the presumption the trial court did not err, and it is
incumbent on appellants to affirmatively demonstrate otherwise. (See
Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) As we will explain,
appellants do not persuade us the dismissal alone categorically established
they are the prevailing parties for cost purposes. Nor do they convince us
that the trial court erred or abused its discretion in awarding costs to Save
Petaluma.
In their opening brief, appellants cite two cases on this point. Although
both contain broad language about a defendant in whose favor a dismissal is
entered being a prevailing party entitled to recover costs as a matter of right
(see Brown v. Desert Christian Center (2011) 193 Cal.App.4th 733, 738
(Brown); Hambrick v. Healthcare Partners Medical Group, Inc. (2015) 238
Cal.App.4th 124, 138-139, 164 (Hambrick) [affirming award of costs to
defendants after dismissal on ground of judicial abstention, following
Brown]), neither addresses a situation in which the plaintiff succeeded
during the litigation, preliminarily or finally, and as a result obtained
significant relief. In Brown, the plaintiff’s personal injury action against his
employer was dismissed after a hearing at which the court found his injuries
were sustained in the course of his employment and were subject to the
exclusive remedy of workers’ compensation, as a result of which the court
lacked subject matter jurisdiction. (Brown, at pp. 736-737.) Similarly,
Hambrick’s claims challenging the conduct of three health service plans were

v. AutoZone, Inc. (2018) 24 Cal.App.5th 855, 878 [“ ‘Issues not raised in an
appellant’s brief are deemed waived or abandoned’ ”].)

6
dismissed after the court sustained defendants’ demurrers based on judicial
abstention. (Hambrick, at pp. 132, 138.)
Basically, appellants fail to grapple with Save Petaluma’s argument, or
the cases it cites for the proposition that where a plaintiff achieves its
primary litigation goal by means of litigation, eventual dismissal of the case
does not necessarily bring the defendant within the definition of prevailing
party under section 1032(a)(4). In particular, they all but ignore the
language in section 1032 stating that the enumerated categories of prevailing
parties (including “a defendant in whose favor a dismissal is entered”) are
prevailing parties “unless the context clearly requires otherwise.” (§ 1032,
subd. (a), italics added.) Neither Brown nor Hambrick discusses this
language, but other cases, including some cited by Save Petaluma, do.
In Molski v. Arciero Wine Group (2008) 164 Cal.App.4th 786 (Molski),
which Save Petaluma cites, the court stated, “[S]ection 1032, subdivision
(a)(4) provides that the defendant is the prevailing party if dismissal is
entered in its favor or if the plaintiff does not recover any relief against it,
unless the context clearly requires otherwise. A plaintiff may ‘prevail’ for
purposes of [Civil Code] section 55 [California Disabled Persons Act] if the
lawsuit was the catalyst motivating the defendant to modify its behavior or
the plaintiff achieved the primary relief sought.” (Id. at p. 790, italics added,
citing Donald v. Cafe Royale, Inc. (1990) 218 Cal.App.3d 168, 185 (Donald).)
In Donald, Division Three of our court reversed a trial court’s
determination that the defendant restaurant was the prevailing party
entitled to attorney fees on the injunctive relief claim because the plaintiff’s
request for injunctive relief compelling the restaurant to provide disabled
access was denied after he sued the restaurant and it went out of business.
(Donald, supra, 218 Cal.App.3d at pp. 184-185.) Relying in part on
7
section 1032(a)(4), the court noted its definition of “prevailing party” “is
qualified by the limitation ‘unless the context clearly requires otherwise.’ ”
(Donald, at p. 185.) Neither party had obtained relief on the injunctive relief
cause of action, and the defendant thus fell within section 1032(a)(4)’s
definition of prevailing party [a defendant where neither party obtains relief],
but the court held the defendant was not the prevailing party because the
context clearly required otherwise: “The legal and factual context of the
instant case compels the conclusion that Cafe Royale cannot be considered
the prevailing party . . . .” (Donald, at p. 185.) Injunctive relief had been
denied only because “the restaurant was no longer in business, not because
access violations had not been demonstrated.” (Ibid.) Further, the
restaurant ceased operation because “the costs of compliance with access
requirements” would have left it unable to operate profitably. (Ibid.) Despite
the absence of judicial relief, the court observed that the plaintiff had filed
his action to enjoin the restaurant’s operation in violation of disability
statutes and regulations, and “[t]he cessation of [its] operation . . . achieved
that result.” (Ibid.) The court held it was an abuse of discretion to determine
that “by going out of business and rendering the issue moot, Cafe Royale
‘prevailed’ for purposes of attorney fees.” (Ibid.)
Save Petaluma also cites City of San Clemente v. Department of
Transportation (2023) 92 Cal.App.5th 1131 (City of San Clemente), in which
the Fourth District recognized the language, “ ‘unless the context clearly
requires otherwise’ ” creates an exception to section 1032(a)(4)’s definition of
“prevailing party” to include “a defendant in whose favor a dismissal is
entered.” (Id. at p. 1151, citing DeSaulles v. Community Hospital of Monterey
Peninsula (2016) 62 Cal.4th 1140, 1147-1148 (DeSaulles); see also City of San
Clemente, at p. 1152 [“There may be an exception where context requires, and
8
the [plaintiff] relied on the catalyst theory to establish context required
finding [the defendants] weren’t prevailing parties”].) In City of San
Clemente, the court rejected the plaintiff’s theory that its litigation was the
catalyst of the agency’s change in plans and held the exception did not apply.
(City of San Clemente, at pp. 1151-1152.) Nonetheless, its interpretation of
the language of section 1032 refutes appellants’ argument that a dismissal in
all cases entitles a defendant to prevailing party status as a matter of right.
Appellants make no attempt to reconcile the qualifying statutory text
(“unless the context clearly requires otherwise”) with their bright-line
position that all dismissals categorically entitle a defendant to an award of
costs. They do not address that qualifying language in their opening brief.
In their reply brief they suggest reliance on it has been waived because
“[p]etitioner never argued, and the trial court never found below, that the
‘context clearly requires otherwise.’ ” But their assertion that Save Petaluma
failed to raise it in the trial court is unsupported by any citation to the record,
and we may therefore disregard it. (Hernandez v. Vitamin Shoppe Industries
Inc. (2009) 174 Cal.App.4th 1441, 1453 [it is duty of party to support
arguments by citing pages of record; appellate court may disregard any
factual contention not supported by proper record citations].) The argument
that the trial court did not rely on the language is immaterial. The trial
court clearly ruled that the context required otherwise. Further, “we must
uphold the trial judge’s decision if it’s correct under any theory of law
applicable to the case.” (City of San Clemente, supra, 92 Cal.App.5th at
p. 1152.)
Appellants likewise fail meaningfully to address the cases Save
Petaluma cites. They do not discuss City of San Clemente at all in their
opening brief and in their reply brief give it only cursory treatment. They do
9
not discuss Molski or Donald at all. Instead, their reply brief largely ignores
Save Petaluma’s arguments and authorities in favor of citing two additional
cases that, like Brown and Hambrick, purport to state a broad, categorical
bright-line rule but shed no more light on the matter than the cases cited in
their opening brief.3
Save Petaluma cites two cases that further support its argument that a
defendant in a case rendered moot is not necessarily the prevailing party
entitled to costs. Neither involved a technical dismissal, but both had a
procedural posture similar to this case and suggest that in a case like this
one “the context” may “clearly require[]” a finding that the defendant is not
the prevailing party. (§ 1032(a)(4).) In one, Lewin v. Board of Trustees (1976)
62 Cal.App.3d 977 (Lewin), the court held that when an administrative
mandamus proceeding had become moot because the petitioner obtained the
relief they were seeking, the petitioner was the prevailing party for cost
purposes, and the defendant could not avoid cost liability by mooting the
dispute. (See id. at pp. 983-984 [affirming award of costs to teachers who had

3 See Michell v. Olick (1996) 49 Cal.App.4th 1194, 1197-1199 (error to
deny costs to plaintiff who achieved net monetary recovery; “It is clear from
the statutory language that when there is a party with a ‘net monetary
recovery’ (one of the four categories of prevailing party), that party is entitled
to costs as a matter of right; the trial court has no discretion to order each
party to bear his or her own costs”); In re Tobacco Cases II (2015)
240 Cal.App.4th 779, 789, 805-806 (affirming award of costs to defendant
after plaintiff’s claims for restitution and declaratory relief were denied on
the merits and request for injunction was denied on mootness grounds;
defendant qualified both as “ ‘a defendant where neither plaintiff nor
defendant obtains any relief, and a defendant as against those plaintiffs who
do not recover any relief against that defendant’ ” and “thus it is entitled to
costs as a matter of right”). Those cases are little different from, and shed no
more light on the issue than, the Brown and Hambrick cases cited in
appellants’ opening brief.

10
been terminated from employment and were reinstated after initiating
administrative mandamus proceedings challenging the employment action].)
Lewin did not involve section 1032; it arose under the cost statutes applicable
to mandamus proceedings (see §§ 1094.5, 1095). But it is nonetheless
persuasive. (See Santos v. Civil Serv. Bd. (1987) 193 Cal.App.3d 1442, 1446
[“[t]here is no reason to treat cost awards made under [§] 1032 any differently
from cost awards made under [§] 1094.5”].)
In the other case, Miller v. American Honda Motor Co. (1986)
184 Cal.App.3d 1014 (Miller), the court held it was not an abuse of discretion
to deny costs to a cross-defendant where the cross-complaint had become
moot (though, for reasons not apparent, had not been formally dismissed or
disposed of in any manner). (See id. at pp. 1017, 1018, fn. 2, 1020-1021.)
Miller stated that in determining which party prevailed, “ ‘[a] party who
nominally wins but does not receive any substantial recovery or successfully
maintain any substantial defense should not receive costs’ ” and
“consideration may be given to whether a party prevailed on the primary
purpose of the litigation but for extraneous reasons did not receive a
favorable judgment.” (Id. at p. 1020.) Both cases undermine appellants’
position that they were entitled to costs as a matter of right even though
Save Petaluma obtained significant relief before appellants abandoned the
plan to develop the property and rendered the case moot.
Apart from Lewin and Miller, the parties discuss no authority
addressing a court’s discretion to decide who prevailed for purposes of
awarding costs when a dispute has become moot. A recent case, which Save
Petaluma raised in a new authority letter before oral argument, strongly
supports affirmance of the cost award. Cisneros v. Department of Motor
Vehicles (2024) 104 Cal.App.5th 381 (Cisneros), held that two petitioners in
11
administrative mandamus proceedings were prevailing parties as a matter of
law under section 1032 after they obtained administrative stays that enabled
them to achieve their litigation objectives before their claims became moot.4
(See Cisneros, at pp. 426-431.) Their petitions were “denied” as moot rather
than technically dismissed, but the appellate court said that distinction made
no difference (see id. at p. 427, fn. 8) and reversed an order denying
petitioners their costs. (Id. at p. 433.) Applying Lewin, the court also held
the petitioners might be entitled to their costs under the statutes governing
mandamus proceedings and directed the trial court to consider that issue on
remand. (See Cisneros, at pp. 431-432.)
Save Petaluma also points out that our Supreme Court rejected the
categorical rule appellants advocate—that all dismissals qualify defendants
as prevailing parties under section 1032(a)(4) as a matter of right. (See
DeSaulles, supra, 62 Cal.4th 1140.) DeSaulles held that when a plaintiff
voluntarily dismisses a case after entering into a settlement in which it
obtains “a net monetary recovery,” the defendant is not a prevailing party. In
such a situation, the dismissal is not a dismissal in the defendant’s “favor” as
that term is used in section 1032(a)(4). (DeSaulles, at p. 1158.) Moreover,
the court held the plaintiff in such a circumstance is the prevailing party

4 In that case, petitioners challenged administrative decisions by the
Department of Motor Vehicles (DMV) to suspend their licenses after their
arrests on charges for driving under the influence, contending the DMV had
wrongly denied them a continuance of their suspension hearings. (Cisneros,
supra, 104 Cal.App.5th at pp. 392, 393-394.) They obtained administrative
stays that enabled them to continue driving while the mandamus proceedings
were underway, and while the stays were in effect their licenses were
reinstated because they were acquitted of the underlying criminal charges.
(Id. at pp. 426-427.) The reinstatement of their licenses mooted their
lawsuits challenging the DMV’s hearing procedures. (Ibid.)

12
because she has obtained a “ ‘net monetary recovery’ ” entitling her to an
award of costs. (Ibid.) The court interpreted the phrase “ ‘party with a net
monetary recovery,’ ” to employ “a broad understanding of the word ‘recovery’
” that “encompasses situations in which a defendant settles with a plaintiff
for some or all of the money that the plaintiff sought through litigation.” (Id.
at p. 1154.) Further, where two parties potentially fall within the definition
of prevailing party, DeSaulles holds that not all instances in which a case is
dismissed is the dismissal in favor of the defendant for purposes of a cost
award under section 1032(a)(4). (See DeSaulles, at pp. 1152-1153.) As the
court explained, the “basic purpose of” section 1032 is to “impos[e] costs on
the losing party,” and its definition of prevailing party “was intended to
promote the equitable rule that unsuccessful plaintiffs could not evade the
cost statute by dismissing their suit.” (DeSaulles, at pp. 1152-1153.) The
court there held the “definition of ‘prevailing party’ as ‘a defendant in whose
favor a dismissal is entered’ was not intended to encompass defendants that
entered into a monetary settlement in exchange for dismissal” and the
equitable rule “does not apply to plaintiffs that have achieved some litigation
success through settlement of the case.” (Ibid.)
DeSaulles also bears on the meaning of other language in
section 1032(a)(4). As we have indicated, in defining “prevailing party,”
subdivision (a)(4) sets forth a distinct rule for situations in which “any party
obtains other than monetary relief” (italics added) and situations that are
“other than as specified” in the first sentence of the definition. In those
circumstances, it provides, “the ‘prevailing party’ shall be as determined by
the court, and . . . the court, in its discretion, may allow costs or not and, if
allowed, may apportion costs between the parties on the same or adverse
sides . . . .” DeSaulles’s broad interpretation of “net monetary recovery”
13
based on the equitable basis underlying section 1032 supports a similarly
broad reading of the phrase “other than monetary relief.” Save Petaluma
cites this court’s decision in United States Golf Assn. v. Arroyo Software Corp.
(1999) 69 Cal.App.4th 607, 625, for the proposition that injunctive relief is
“other than monetary relief” under section 1032(a)(4) and cites DeSaulles and
other cases for the proposition that the interim relief it was afforded and the
ultimate achievement of its primary purpose gave the trial court discretion to
find, and supported its exercise of discretion in finding, that in light of such
nonmonetary relief, Save Petaluma was the prevailing party.
Appellants fail to discuss DeSaulles in their opening brief and dismiss
it in a sentence in their reply brief as involving “the distinguishing factor that
the plaintiff in that case was deemed to have achieved some litigation success
‘through settlement of the case.’ ” (Bolding omitted.) Without discussing why
that changes how the equitable interpretation adopted by our high court
should be applied differently when success is achieved by way of pretrial
rulings and defendants’ decision not to pursue the challenged project,
appellants’ conclusory distinction is unpersuasive.
Our own research yielded a case specifically addressing the “other than
monetary relief” provision in section 1032(a)(4). In Madera Oversight
Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48, disapproved
on other grounds in Neighbors for Smart Rail v. Exposition Metro Line
Construction Authority (2013) 57 Cal.4th 439, 457, the court observed that
the plaintiffs had “obtained no monetary recovery, but did achieve ‘other than
monetary relief’ through the issuance of a peremptory writ of mandate
decertifying the EIR and vacating the approvals related to the project.”
(Madera Oversight Coalition, at p. 106.) These circumstances required the
trial court to determine who was the prevailing party and granted it
14
discretion under the provision to “ ‘allow costs or not and, if allowed [to]
apportion costs between the parties.’ ” (See ibid.) There, the plaintiffs’
claims for writ of mandamus and declaratory and injunctive relief were based
on violations of CEQA, the Planning and Zoning Law and the Water Code.
(Madera Oversight Coalition, at p. 60.) The trial court granted in part and
denied in part the plaintiffs’ writ petition and both parties appealed. (Id. at
pp. 60-61.) On appeal, it appears that the plaintiffs successfully defended
their trial court victories and prevailed on additional merits arguments. (See
id. at pp. 96-97, 105 [successfully defended trial court ruling that EIR’s water
assessment was inadequate], 79, 81-82, 85-86 [succeeded on appellate
argument that mitigation measure relating to archeological sites was
unlawful because it was unverified and that EIR’s discussion of mitigation
regarding such resources was inadequate]; 88, 91-92, 96 [succeeded on
appellate argument of error in baseline used to quantify project’s impacts].)
The trial court had apportioned costs between the parties, which the Court of
Appeal held it had discretion to do (id. at p. 106); however, it did not decide
whether the trial court’s apportionment was an abuse of discretion because
“[t]he circumstances that served as the basis for that apportionment have
changed by virtue of the greater success plaintiffs have achieved in this
appeal.” (Id. at p. 107.) It therefore vacated the trial court’s apportionment
order and remanded for that court to “exercise its discretion while taking into
account how circumstances have changed as a result of this appeal.” (Ibid.)
Madera Oversight Coalition provides additional support for Save Petaluma’s
argument that its successes in the trial court and achievement of its ultimate
goal overcame the presumption that dismissal of a case entitles a defendant
to costs and vested the trial court with discretion under section 1032(a)(4) to

15
determine who was the prevailing party and to award or deny costs
accordingly.
Appellants assert that even if they did not prevail, neither did Save
Petaluma, and so at a minimum the cost award in its favor cannot stand.
First, they say, Save Petaluma did not prove it was a catalyst. As we discuss
further below, we disagree. But regardless, proving causation under a
catalyst theory is not the only basis to be deemed a prevailing party under
section 1032. The petitioners in Cisneros weren’t catalysts; they were
deemed to have prevailed not because they caused the defendant to change
its behavior or acquiesce but because they obtained favorable provisional
relief before the case became moot for reasons wholly unrelated and
extraneous to the lawsuit. (See footnote 4, ante, p. 12.) Simply put, the
petitioners in Cisneros achieved litigation success through the issuance of an
administrative stay sufficient for them to be deemed prevailing parties.
Finally, appellants say Adler v. Vaicius (1993) 21 Cal.App.4th 1770
“rejected the claim that merely obtaining some provisional relief entitles a
petitioner to costs.” They do not discuss the case and so it does not warrant
discussion. Suffice it to say, it did not so hold and they misread it. Further,
to the extent some of its language could be construed that broadly, the case is
factually distinguishable, it predates DeSaulles, the court was not asked to,
and did not, consider section 1032’s qualifying language (“unless the context
clearly requires otherwise”) and it would be in considerable tension with
Cisneros.
In short, we reject appellants’ contention that the trial court’s
determination that Save Petaluma was the prevailing party under
section 1032, and that appellants were not, either was legally erroneous or
was an abuse of discretion. We conclude it was neither.
16
II.
Entitlement to Attorney Fees
As noted, the trial court awarded attorney fees under section 1021.5,
which codifies the private attorney general doctrine of fee recovery (Press v.
Lucky Stores, Inc. (1983) 34 Cal.3d 311, 317). In relevant part the statute
states: “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.)
“ ‘Generally, whether a party has met the statutory requirements for an
award of attorney fees is best decided by the trial court, whose decision we
review for abuse of discretion.’ ” (The Kennedy Com. v. City of Huntington
Beach (2023) 91 Cal.App.5th 436, 456 (Kennedy Com.).) “ ‘Under the abuse of
discretion standard, we presume the trial court properly applied the law and
acted within its discretion unless the appellant affirmatively shows
otherwise.’ ” (Jenkins v. Dermatology Management, LLC (2024)
107 Cal.App.5th 633, 649 (Jenkins).) An appellant seeking to demonstrate an
abuse of discretion faces a “ ‘ “daunting task.” ’ ” (Ibid.) An appellant must
show that there is “ ‘no reasonable basis for the action’ ” or, put another way,
that the court’s ruling “exceeded the bounds of reason.” (Ibid.) “ ‘The trial
judge is considered to be in the best position to determine whether the
[statutory] criteria [for a fee award] have been met, and its determinations
17
will not be disturbed “unless the appellate court is convinced that it is clearly
wrong.” ’ ” (Kennedy Com., at pp. 456-457.) “[W]hen, as here, the fee order
under review was rendered by a judge other than the trial judge, we may
exercise ‘somewhat more latitude in determining whether there has been an
abuse of discretion than would be true in the usual case.’ ” (Center for
Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603,
616.)
De novo review applies where the determination of whether the criteria
for an award of attorney fees and costs have been satisfied “ ‘ “amounts to
statutory construction and a question of law.” ’ ” (Conservatorship of Whitley
(2010) 50 Cal.4th 1206, 1213 (Whitley).) However, appellants have not raised
any issue of statutory interpretation.
Appellants assert that none of the required elements of section 1021.5
were met. They do not frame their arguments in terms of the abuse of
discretion standard of review. Even bearing in mind our “somewhat” less
deferential approach to these issues because the trial judge who granted the
attorney fee motion did not preside over the merits-related portion of the case
(Center for Biological Diversity v. County of San Bernardino, supra,
188 Cal.App.4th at p. 616), appellants have not affirmatively demonstrated
that the trial court’s findings and holdings lacked any “ ‘reasonable basis.’ ”
(Jenkins, supra, 107 Cal.App.5th at p. 649.)
A. Elements for Attorney Fee Recovery Under Section 1021.5
In Vasquez v. State of California (2008) 45 Cal.4th 243 (Vasquez), our
high court articulated the statutory elements for recovery of attorney fees
under section 1021.5: “[A] court may award [attorney] fees only to ‘a
successful party’ and only if the action has ‘resulted in the enforcement of an
important right affecting the public interest. . . .’ [(§ 1021.5.)] Three
18
additional conditions must also exist: ‘(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.’
Section 1021.5 codifies the courts’ ‘traditional equitable discretion’ concerning
attorney fees [citation], and within the statutory parameters courts retain
considerable discretion. ‘[T]he Legislature has assigned responsibility for
awarding fees under section 1021.5 “not to automatons . . . , but to judges
expected and instructed to exercise ‘discretion.’ ” ’ [Citations.] 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.’ ” (Vasquez, at pp. 250-251.)
“[A] plaintiff who . . . has not succeeded in obtaining ‘a judicial
resolution’ [citation] or ‘a judicially recognized change in the legal
relationship between the parties,’ ” may still recover attorney fees if it meets
the elements of the catalyst theory. (Vasquez, supra, 45 Cal.4th at p. 260.)
Under a catalyst theory, a fee claimant must show the defendant has
“change[d] its behavior substantially because of, and in the manner sought by,
the litigation.” (Graham v. DaimlerChrysler (2004) 34 Cal.4th 553, 560
(Graham), italics added.) This causation prong does not require proof that
“ ‘litigation [was] the only cause of defendant’s acquiescence.’ ” (Kennedy
Com., supra, 91 Cal.App.5th at p. 457.) “ ‘Rather, [the] litigation need only be
a substantial factor contributing to the defendant’s action.’ [Citation.] ‘In
conducting the causation analysis, “ ‘ “[t]he appropriate benchmarks . . . are
19
(a) the situation immediately prior to the commencement of suit, and (b) the
situation today, and the role, if any, played by the litigation in effecting any
changes between the two.” ’ ” ’ ” (Ibid.) “Where there is no causal connection
between the plaintiff’s action and the relief obtained, an attorney fee award is
not proper” under a catalyst theory. (Westside Community for Independent
Living, Inc. v. Obledo (1983) 33 Cal.3d 348, 353.) There are two additional
elements, both judicially developed, that a fee claimant must prove to recover
fees under a catalyst theory: (1) “that the lawsuit had merit and achieved its
catalytic effect by threat of victory, not by dint of nuisance and threat of
expense,” and (2) “that the plaintiffs reasonably attempted to settle the
litigation prior to filing the lawsuit.” (Tipton-Whittingham v. City of Los
Angeles (2004) 34 Cal.4th 604, 608 (Tipton-Whittingham).) The merits
inquiry entails a determination “that the lawsuit is not ‘frivolous,
unreasonable or groundless.’ ” (Graham, at p. 575.) It is “not unlike the
determination [a trial court] makes when asked to issue a preliminary
injunction, i.e., . . . a determination at a minimum that ‘ “the questions or law
or fact are grave and difficult.” ’ ” (Id. at pp. 575-576.)
The parties dispute whether this is a catalyst case. As it did in the
trial court, Save Petaluma disavows that it is relying on a catalyst theory,
and appellants assert it forfeited any right to recover fees under such a
theory. We disagree that there was a forfeiture. In the trial court and on
appeal, Save Petaluma asserted as an alternative argument that even if this
is a catalyst case, it satisfied the two additional elements required under that
theory (proof of a meritorious lawsuit and settlement attempts). For the
reasons we will discuss, we conclude this is not a catalyst case. But, even if it
were, we conclude plaintiffs met the additional elements for catalyst cases.

20
B. The Trial Court’s Ruling
The trial court found Save Petaluma was the successful party under
section 1021.5 based on all the circumstances, explaining why at length in
two single-spaced pages of findings. Because we afford its ruling considerable
deference, we begin by quoting those findings in full:
“As explained in the order on the motions regarding costs, the history of
this litigation, as outlined above, demonstrates that Petitioner is the
successful party and achieved its goals. [¶] First, Petitioner brought a motion
for preliminary injunction and administrative stay. This court granted [the]
motion, finding that it met not only the standard for an administrative stay,
but the standards required for a preliminary injunction, including a sufficient
showing on the probability of success. [¶] Second, [the City and Safeway] filed
both a special motion to strike SLAPP suit and a demurrer, which
fundamentally challenged all aspects of Petitioner’s claims. The demurrer
attacked both the substantive CEQA claims and the claim that [the City]
failed to provide a fair hearing. In it, [the City and Safeway] asserted that
Petitioner had failed to exhaust administrative remedies, the petition was
untimely under the statute of limitations, [the City’s] actions were not subject
to CEQA because they were not discretionary, and that it was appropriate, as
a matter of law, for [the City] to base its decision to grant the approvals on
the threat that it would otherwise face a lawsuit from [Safeway]. In the
special motion to strike, [the City and Safeway] moved to strike the second
cause of action for denying the public a fair hearing. They argued that this
cause of action arose from protected activity because [it] was based on
[Safeway’s] alleged threatening communications to [the City] that [Safeway]
would sue [the City] for monetary damages if [the City] did not approve the
Project; thereby improperly influencing [the City’s] decision. Because of its
21
particular nature and two-part test, moreover, the special motion to strike
involved not merely analysis of the pleadings, but evidence on the validity of
the claims. In a roughly 81-page decision,[5] explaining the court’s analysis in
detail, this court denied the motion to strike and overruled the demurrer. [¶]
Third, [Safeway] filed a writ petition with the court of appeal challenging this
court’s decisions on all three matters. The court of appeal summarily denied
that petition on December 16, 2019. [¶] Fourth, Petitioner brought a motion
for leave to conduct discovery which this court granted, and a motion to
compel further discovery responses, which this court partly granted in 2020.
The court made these decisions on finding that Petitioner had made a
sufficient showing regarding the bases for discovery, in light of the fact that
CEQA matters are ordinarily restricted to the administrative record and a
party must demonstrate a valid basis for obtaining discovery in such
litigation. [¶] Fifth, in June 2021, after a period with no active litigation,
Petitioner sought to schedule a new case management conference in order to
set a new hearing and proceed with litigation, but [the City and Safeway]
opposed this request. They did so by expressly contending that no further
proceedings should be held since the litigation had been rendered moot. This
was based on their claim that during the litigation [the City’s] approval for
the Project had expired in April 2021. In their papers on the motions to tax
or strike costs, [the City and Safeway] also admitted, again, that during the
pendency of this litigation, the approval at issue expired without the Project
being built. They also asserted that because of the approval expiration the

5 We agree with appellants that the trial court misstated the length of
that decision: it is 25 pages, not 81.

22
Project may not now be built, at least without first obtaining a new approval.
They reiterate this position again in their opposition to this motion.
“It was this litigation which prevented the Project from being built.
Petitioner, as noted, obtained a stay and preliminary injunction preventing
any construction on the Project pending this litigation, and the court of
appeal dismissed the challenge to this. This court also found in its order on
the motions to tax or strike costs that [Safeway] had informed [the City] that
‘despite [its] best efforts to move forward with construction, [it] has been
precluded from doing so by the stay and preliminary injunction,’ and then
reiterated ‘But for the granting of the stay and preliminary injunction, [it]
would be well underway in terms of constructing[] the Project.’ The stay and
injunction which Petitioner obtained had the effect of a permanent
injunction, prohibiting the challenged Project pending these proceedings,
resulting in the approval expiring without [Safeway] being able to realize the
Project. It is clear from the record and history of this litigation that
Petitioner is a ‘successful’ party for the purposes of . . . section 1021.5. As in
the cases cited above, Petitioner successfully obtained a stay and preliminary
injunction barring implementation of the Project pending the litigation, with
a challenge to the stay and injunction being dismissed. The stay and
injunction prevented the realization of the Project. [The City and Safeway]
claim that the approval simply expired by its own terms, but that does not
change the fact that, as [Safeway] itself admitted, the Project would have
been built before expiration had it not been for the stay and preliminary
injunction. They took no further action and adamantly opposed the need for
any further litigation on the basis that the action had become ‘moot,’ in
essence because Petitioner had gotten exactly what it wanted. The court
notes that in some ways, [the City and Safeway] claiming that the action had
23
become moot by their own actions would also be tantamount to improperly
seeking an interlocutory remand to correct errors without a decision on the
merits. Courts may not in CEQA actions use an interlocutory remand where
to do so would be to short-circuit litigation and prevent the petitioner from
obtaining a decision on the merits, such as where the remand would allow the
respondent to cure the defects or otherwise avoid further litigation
challenging its actions. [Citations.]
“Petitioner was also successful at each step of the litigation prior to the
dismissal. As noted above, it not only obtained the stay and preliminary
injunction, but it survived a demurrer and special motion to strike, it
survived a challenge to these with the court of appeal, and it prevailed in its
request for discovery.”
C. Analysis
We begin with the trial court’s determination that Save Petaluma
established the elements for attorney fees recovery under section 1021.5 on a
non-catalyst theory.
1. The Trial Court’s Finding that Save Petaluma Was the
Successful Party on a Non-Catalyst Theory Was Well
Within Reason.
Appellants challenge the court’s determination that Save Petaluma was
a successful party under the standard governing non-catalyst cases. They
argue Save Petaluma “failed to carry its burden to show . . . a successful
judicial resolution” because it “did not succeed in obtaining a final judgment
on the merits” or “judicial vindication of its avowed litigation goals.” They
contend that, “[i]nstead, the project’s design review approval expired in
accordance with its own terms.”

24
Appellants’ framing of the issues fails to acknowledge that we do not
start from scratch, as if we were free to address de novo the “ ‘intensely
factual, pragmatic’ ” issue of whether Save Petaluma was the successful
party. (Schmier v. Supreme Court (2002) 96 Cal.App.4th 873, 878.) On the
contrary, as explained in Protect Our Water v. County of Merced (2005)
130 Cal.App.4th 488, 494, “Generally, the question of whether a party is a
prevailing party is best left to the trial courts,” because “it is a factual
pragmatic inquiry.” (See also Graham, supra, 34 Cal.4th at p. 565 [“we have
taken a broad, pragmatic view of what constitutes a ‘successful party’ ”].)
The question we must answer on appeal is simply whether the trial court’s
finding that Save Petaluma was successful has any reasonable basis.
Contrary to appellants’ assertion, success for purposes of
section 1021.5, even under a non-catalyst theory, does not invariably require
a “final judgment on the merits.” Our high court in Vasquez distinguished
catalyst cases from non-catalyst cases by stating, “a plaintiff who has not
succeeded in obtaining ‘a judicial resolution’ [citation] or ‘a judicially
recognized change in the legal relationship between the parties’ [citation]
must obtain attorney fees under the catalyst theory, or not at all.” (Vasquez,
supra, 45 Cal.4th at p. 260.) In Vasquez, the plaintiff had obtained a
stipulated injunction that was entered as a final judgment. (Ibid.) However,
the court explained that “[c]ases . . . in which the plaintiffs have obtained
injunctions or stipulated injunctions have not been treated as catalyst cases.”
(Ibid., italics added.) As an example, it cited County of Colusa v. California
Wildlife Conservation Bd. (2006) 145 Cal.App.4th 637, 657-658 (Colusa),
which it described in a parenthetical, as “preliminary injunction and stay.”
(Vasquez, at p. 260.)

25
Colusa was a multi-party land use case that upheld an award of private
attorney general fees after the plaintiff obtained a preliminary injunction and
administrative stay that led to a negotiated settlement. (See Colusa, supra,
145 Cal.App.4th at pp. 648-651.) There, a county had entered into a
Williamson Act (Gov. Code, § 51200 et seq.) contract with a landowner
limiting the use of his land to agricultural and compatible uses that did not
include use as a wildlife refuge or managed wetlands. (Colusa, at p. 642.)
Subsequently, state agencies negotiated with the landowner to create a
wildlife habitat on the property that would have prohibited cultivation of
agricultural crops for commercial gain. (Id. at pp. 642-643.) When the state
agencies informed the county of the proposed agreement and suggested it
would be compatible with the Williamson Act agreement, the county
disagreed and “expressed its CEQA and Williamson Act compatible use
concerns.” (Colusa, at p. 644.) After two farm bureaus sued the landowner
and state agencies alleging violations of those statutes, the county filed a
cross-complaint and petition for writ of mandate seeking an order allowing it
to reassess the property at full value and requiring specific performance of
the Williamson Act contract or an injunction preventing the landowner from
using his property as a wildlife refuge and wetland. (See Colusa, at p. 644.)
The county also sought to compel the state agencies to rescind their approval
of the acquisition of landowner’s property and to comply with the procedural
requirements of the Williamson Act. (Colusa, at pp. 644-645.)
The county obtained a preliminary injunction enjoining development of
a wildlife refuge on the land and an administrative stay of state agencies’
decision approving the acquisition. (Colusa, supra, 145 Cal.App.4th at
p. 645.) The parties then engaged in settlement discussions, and ultimately
the landowner and state agencies agreed to amend their easement to permit
26
livestock grazing on the property. (Id. at p. 646.) The county then dismissed
its Williamson Act causes of action and, after also settling the remaining
claims, moved for, and was awarded, attorney fees under section 1021.5 for
prevailing on those two causes of action. (Colusa, at p. 646.) The trial court
found the county had prevailed because its claims were “ ‘responsible for
transforming the pre-litigation agricultural prohibition [under the easement]
into the current agreement . . . allowing grazing on the property, in
perpetuity.’ ” (Id. at p. 649.) The Court of Appeal affirmed, holding the trial
court did not abuse its discretion in finding the county prevailed even though
the state agencies never re-noticed their approvals or made appropriate
findings and the landowner was not prevented from using his land as a
wildlife refuge. (Id. at pp. 649-659.) Applying the “broad, pragmatic”
standard of success, the appellate court reasoned the county prevailed on
both causes of action by demonstrating a reasonable probability of success
sufficient to obtain a preliminary injunction, which the trial court could
reasonably find prompted the defendants to come “ ‘to the table’ ” to resolve
the county’s Williamson Act concerns. (See Colusa, at p. 651.) “The practical
result was an agreement regarding the easement, which agreement excused
the findings requirement . . . [citation] and apparently satisfied the County’s
notice concerns.” (Ibid.)
The two pages of the Colusa opinion cited by our high court in Vasquez
include the statement by the Colusa court that, “Although a final judgment
was never entered resolving the merits of the County’s claims of the State
Agencies’ procedural violations of the Williamson Act (both lack of findings
and inadequate notice) and compelling the State Agencies to comply, a
preliminary injunction was entered on a finding of reasonable probability of
success on the merits of such claims. Indeed, the State Agencies did not
27
contest the merits of the procedural claims in their opposition to the motion
for preliminary injunction. In light of that injunction and stay, the State
Agencies then began to seriously address with the County its Williamson Act
concerns, ultimately resulting in a mutually satisfactory amendment of the
easement. The State Agencies only became substantially interested in the
amendment when the Traynham project was stayed and the conservation
agreement was at risk after the issuance of the preliminary injunction and
stay. The record can reasonably be read to find that the State Agencies
would not have followed through with the amendment, which was initially
floated as an idea after the filing of the Farm Bureau’s petition, without the
pressure of the County’s action. The trial court did not abuse its discretion in
finding the County’s action was necessary.” (Colusa, supra, 145 Cal.App.4th
at p. 657.) The cited pages also include Colusa’s holding rejecting the state
agencies’ argument that the trial court erred in failing “to make the
additional findings necessary for a ‘catalyst’ theory of recovery,” as
“unnecessary because this is not a catalyst case.” (Ibid.) And they contain
the Colusa court’s explanation: “The State Agencies claim the trial court was
required to make these additional findings in this case because the County
voluntarily dismissed its claims following settlement. The State Agencies
have applied the catalyst theory the wrong way. What makes a case come
under the catalyst theory is not the voluntary action of the plaintiff, but the
voluntary action of the defendant without any judicial resolution of the
issues. (See Pearl, California Attorney Fee Awards (Cont.Ed.Bar 2d ed.2006)
§ 2.24, p. 61.) This case is not one involving a voluntary change by the State
Agencies without any judicial resolution of the issues. Here, the County
achieved its desired result, as we have explained, through the preliminary
injunction and stay issued by the trial court. Even in the federal courts . . . , a
28
plaintiff who obtains a preliminary injunction that alters the relationship of
the parties may have obtained the ‘judicial imprimatur’ necessary for an
award of attorney fees—without the catalyst theory.” (Id. at p. 658, italics
added.)
Colusa obviously supports Save Petaluma’s argument that this is not a
catalyst case. But beyond that decision, our Supreme Court’s citation to the
pages in which Colusa rejected the precise argument made by appellants
here—that a preliminary injunction cannot satisfy the “judicial imprimatur”
requirement in a non-catalyst case—suggests its approval of Colusa’s
analysis. Further, Save Petaluma cites additional cases (which, along with
Colusa, the trial court also cited) supporting its position that a preliminary
injunction in a case that ends without final judgment, need not be treated as
a catalyst case: Champir, LLC v. Fairbanks Ranch Assn. (2021)
66 Cal.App.5th 583, 590-597 (Champir) [no abuse of discretion in concluding
homeowners were successful when they obtained preliminary injunction
barring homeowners association from constructing traffic light, before case
was mooted through association’s compliance with covenants, conditions and
restrictions]; and Zuehlsdorf v. Simi Valley Unified School Dist. (2007)
148 Cal.App.4th 249, 256-258 (Zuehlsdorf) [upholding fee award to parent
who obtained preliminary injunction requiring school officials to allow
daughter to participate on soccer team, followed by denial of permanent
injunction as moot after season ended].)
Appellants seek to distinguish these cases, claiming Champir and
Zuehlsdorf involved other fee-shifting statutes, not section 1021.5 without
explaining why that matters. And it doesn’t because both cases applied

29
essentially the same legal standard as the one that applies under
section 1021.5.6
In light of all these authorities, the trial court was well within the
bounds of reason in concluding that Save Petaluma was no less “successful”
for purposes of section 1021.5 because it achieved the relief it sought through
a preliminary injunction and stay (not to mention through its successful
defenses against appellants’ writs challenging that relief as well as their
demurrer and anti-SLAPP motion) rather than through a final judgment. As
the trial court found, “It was this litigation which prevented the Project from
being built.” The stay and injunction it obtained “prevent[ed] any
construction on the Project pending this litigation” and this court dismissed
appellants’ writ challenging that relief. Simply put, issuance of the
administrative stay and preliminary injunction effectuated “ ‘a judicially
recognized change in the legal relationship between the parties’ ” to such an
extent that it mooted the need for Save Petaluma to obtain a final “ ‘judicial
resolution’ ” of its claims. (Vasquez, supra, 45 Cal.4th at p. 260.) This was
not a catalyst case.
Appellants argued in the trial court, and again argue here, that “the
[City’s] approval [of the gas station project] automatically expired by its own
terms,” implying this—rather than the litigation—was what prevented the
project from moving forward. As the trial court explained, the expiration of

6 Champir involved Civil Code section 5975, pursuant to which the
success analysis “ ‘focuses on who prevailed “on a practical level” by achieving
its main litigation objectives.’ ” (Champir, supra, 66 Cal.App.5th at p. 590.)
Zuehlsdorf involved Government Code section 800, which likewise requires
“ ‘an evaluation of whether a party prevailed “ ‘ “on a practical level,” ’ ” ’ ”
including considering “the extent to which each party has realized its
litigation objectives.” (Zuehlsdorf, supra, 148 Cal.App.4th at p. 257.)

30
the project approvals “does not change the fact that, as [Safeway] itself
admitted, the Project would have been built before expiration had it not been
for the stay and preliminary injunction. They took no further action and
adamantly opposed the need for any further litigation on the basis that the
action had become ‘moot,’ in essence because Petitioner had gotten exactly
what it wanted.”
Appellants do not grapple with these findings or challenge them as an
abuse of discretion. Instead, they reprise another argument they made
below, that preventing construction of the gas station was not one of the
primary goals of the litigation, and they accuse the trial court of having
“misstated—or invented—the declared primary goals of the litigation” when
it referred to preventing the project from being built.
Appellants’ hyperbole is disrespectful of the trial court, and their
argument lacks merit. It is true that prevailing on a CEQA claim does not
necessarily result in preventing a project from going forward, and appellants
correctly point out that CEQA does not create a legal right to stop a project.
But preventing projects from proceeding without consideration—and possible
mitigation—of health, safety and environmental effects is the goal of CEQA.
(See Pub. Resources Code, § 21002 [declaring state policy that public agencies
should not approve projects as proposed if feasible alternatives or feasible
mitigation measures are available that would substantially lessen their
significant environmental effects and that intent of CEQA procedures is to
assist public agencies in systematically identifying those effects, alternatives
and mitigation measures]; California Building Industry Assn. v. Bay Area Air
Quality Management Dist. (2015) 62 Cal.4th 369, 386 [“the Legislature has
made clear—in declarations accompanying CEQA’s enactment—that public
health and safety are of great importance in the statutory scheme”].) As our
31
high court long ago explained, “A fundamental purpose of an EIR is to
provide decision makers with information they can use in deciding whether to
approve a proposed project . . . .” (Laurel Heights Improvement Assn. v.
Regents of University of California (1988) 47 Cal.3d 376, 394.)
Save Petaluma’s petition for writ of mandate detailed specific adverse
health and safety effects the proposed 16-pump gas station would have on
residents, children and teachers whose homes and schools were in close
proximity to the project site, and challenged the City’s approval of the project
without requiring an EIR based on Safeway’s threats and intimidation rather
than consideration of those effects and any alternatives an EIR would have
revealed. It asserted the project approvals were “contrary to law and invalid
and must be set aside.” And it sought a writ of mandate directing the City to
“[v]acate and set aside all approvals of Project entitlements,” “[c]omply with”
CEQA and the local zoning ordinance, and “[r]efrain from issuing or
approving any further permits or entitlements for the Project until the City
[had] prepared and certified a legally adequate [EIR] and complied with all
other requirements of CEQA.” Alternatives might have included constructing
a smaller gas station or constructing a station on a site further away from
residences, schools and day care centers. And, of course, one alternative
would have been choosing not to approve the project at all.
To the extent Save Petaluma sought to prevent the project from going
forward as proposed, or even at all, its goal was legitimate. Seeking to avoid
having a project approved and built without consideration of its significant
environmental effects is consistent with CEQA, and challenging the City’s
reliance on improper considerations such as threats of economic reprisal was
also legitimate. The fact that the City’s approvals of the project eventually
expired (after getting extended to the maximum extent permitted under local
32
law) does not undermine the fact that Save Petaluma’s success in the
litigation ultimately prevented appellants from moving forward and
permitting construction of a project without addressing significant
environmental concerns and from doing so based on improper considerations.
Insofar as appellants indirectly challenge the trial court’s finding that
Save Petaluma’s litigation was the cause of appellants’ abandonment of the
project, they fail to show the finding was an abuse of discretion. The
chronology of events and history of the litigation fully support the trial court’s
finding. First, Safeway’s documented campaign against the EIR—including
serving city agencies with California Public Records Act requests designed to
support its claim that city council members were biased against the project,
threatening the City with suit for “ ‘tens of millions of dollars of damage’ ”
backed up by a draft writ petition and complaint, threatening to “aggressively
pursue legal recourse, including the fast-tracking of discovery and
depositions” and threatening individual council members that they would “be
required to retain your own counsel” if it filed the suit—all unless the City
vacated its decision to require preparation of an EIR—supports the inference
that Safeway feared preparation of an EIR would lead to more evidence and
wider publicity about health and safety issues and lead to imposition of
mitigation requirements or even outright disapproval of the project. The
City’s initial unanimous decision to require an EIR and quick turnabout to
reverse that decision after holding a new hearing that, according to a
councilmember and the city manager, it held in response to Safeway’s threat
of a lawsuit with “millions of dollars of financial exposure” and the lack of
City funds to fight it supports the inference that the City acted based on
Safeway’s threat rather than a genuine determination that an EIR was not
required. In ruling on Save Petaluma’s requests for stay and preliminary
33
injunction, the trial court acknowledged Save Petaluma’s evidence showing
the City’s decision “was based on financial considerations from the threat of
lawsuits” and that this factor “support[ed] the injunction here.”
The evidence also strongly supports the inference that appellants’
failure to pursue the project prior to final resolution of the case was, in whole
or part, the result of the litigation. As the trial court pointed out, Safeway
admitted in a letter to the City in February 2020, that “despite [its] best
efforts to move forward with construction, it has been precluded from doing so
by the stay and preliminary injunction” and that, “[b]ut for the granting of the
stay and preliminary injunction, [it] would be well underway in terms of
constructing the [Project].” (Italics added.) Further, while it was not a final
judicial resolution, the trial court’s October 19, 2019 order did not bode well
for Safeway’s and the City’s defenses to Save Petaluma’s action if they had
extended the approval deadline and pursued the litigation to completion. In
its pretrial rulings, with which the judge who decided the fee motion was
familiar, the court rejected, at least preliminarily, all or virtually all the
arguments appellants raised, at least some of which they presumably would
have needed to prevail on to obtain a final judgment in their favor.7 In short,

7 It rejected the arguments in their demurrer and motion to strike that
Save Petaluma’s claims were barred by failure to exhaust administrative
remedies and by the statute of limitations. It rejected their claim that the
City lacked discretion to consider or mitigate the project’s impacts and CEQA
therefore did not apply, observing that the City’s zoning ordinance contained
broad language giving it discretion to approve or disapprove a project or
require modifications, including based on such criteria as “ ‘promotion of the
public health, safety, and general welfare.’ ” It held the ordinance “on its face
is more broad and open-ended than the ordinance language set forth in [the
case appellants relied on].” Also weighing against the argument that the
City’s approval was ministerial and exempt from CEQA, was the City’s own
interpretation of the ordinance as discretionary as evidenced by its
34
in light of the trial court’s rulings early in the litigation, appellants faced a
very real risk that in the end they would lose the case, and it is reasonable to
infer their decision not to proceed was at least in part based on the risk made
evident by the court’s earlier rulings.
Finally, appellants’ attempt to analogize this case to three other
decisions issued by this division is unavailing. None is factually similar to
this case in a way that matters.8

preparation of a mitigated negative declaration and notice of determination,
which “by definition” were CEQA decisions.
Considering Save Petaluma’s writ claim that the City failed to provide
a fair hearing and based its decision not to require an EIR on the financial
exposure Safeway threatened rather than on CEQA criteria, the court
addressed the cases appellants relied on and found “no indication” a city
could appropriately “base a decision on the threat of lawsuit” or that there
could not be a “violation of the right to a fair hearing” based on a decision
made “solely out of concern for the costs of potential litigation over the
decision” while “avoid[ing] the duty to conduct a hearing on the actual merits
of the matter before it.”
While the court made no final determinations of fact in deciding to
grant the stay and preliminary injunction, it considered and applied the law
to Save Petaluma’s evidence. As it noted, “[u]nder the ‘fair-argument’ test,
an EIR must be prepared whenever ‘it can be fairly argued’ based on
substantial evidence in the record that the project may have a significant
environmental impact” “even if other substantial evidence supports the
conclusion that there are no significant impacts.” Save Petaluma had
provided “evidence . . . of experts identifying potential impacts of the Project”
and that the City’s “own staff report found there to be conflicting evidence on
the impacts,” which “may support a fair argument” that would “require an
EIR.” This, and the evidence showing the City’s decision “was based on
financial considerations from the threat of lawsuits” supported the
injunction.
8 Appellants rely on isolated quotations from Karuk Tribe of Northern
California v. California Regional Water Quality Control Bd., North Coast
Region (2010) 183 Cal.App.4th 330, 364-370 [reversing fee award]; Center for
Biological Diversity v. California Fish & Game Com. (2011) 195 Cal.App.4th
128, 131, 138-142 [reversing fee award]; and Artus v. Gramercy Towers
35
For all these reasons, the trial court’s determination that Save
Petaluma was a prevailing party under a non-catalyst theory is supported by
substantial evidence. Appellants have failed to show it was lacking in
reason.
2. The Trial Court Did Not Act Without Reason in Finding
Save Petaluma Vindicated an Important Right.
Relying principally on Canyon Crest Conservancy v. County of Los
Angeles (2020) 46 Cal.App.5th 398 (Canyon Crest), the City and Safeway
assert that the litigation did not “enforce[] . . . an important right affecting
the public interest” (§ 1021.5) because “merely obtaining temporary
injunctive relief based on allegations of inadequate CEQA review is not the
‘vindication of an important public right.’ ” They assert that the appellate
court in Canyon Crest “f[ound] an important right under CEQA to mean an

Condominium Assn. (2022) 76 Cal.App.5th 1043, 1055-1058 (Artus)
[affirming denial of fees under abuse of discretion standard].) In Karuk and
Center for Biological Diversity, we held section 1021.5 would not support
awards of attorney fees in cases that resulted only in remands to
administrative agencies to reconsider previous decisions to address mere
procedural defects and no substantive change in the agency’s position.
(Karuk, at pp. 364-369; Center for Biological Diversity, at pp. 131, 141.) In
Artus, the plaintiff obtained a preliminary injunction restraining her
homeowner’s association from enforcing some, but not all, the rules and
guidelines her suit challenged. (Artus, at p. 1047.) Two of her causes of
action were then dismissed on demurrer and an anti-SLAPP motion,
preventing her from obtaining damages and the court-appointed monitor she
sought. (Ibid.) The trial court denied fees, finding she had achieved only one
of her four litigation objectives and that the win was procedural and much
less significant than the ones she failed to achieve. (Id. at p. 1053.) On
appeal, we affirmed, noting the plaintiff had not even addressed the
threshold “successful party” element and had failed to show her procedural
victory significantly benefited even other members of the association. (Id. at
p. 1057.) Unlike here, the plaintiffs’ interim successes in those cases
accomplished no significant or lasting change.

36
order or agreement to prepare an EIR.” This argument disregards both our
standard of review and the controlling legal standard and also misreads the
caselaw.
As Canyon Crest itself holds, the trial court’s determination of whether
litigation has enforced an important right is subject to abuse of discretion
review. (See Canyon Crest, supra, 46 Cal.App.5th at p. 409.) As we have
explained, the fact that a plaintiff prevails in a manner that obviates the
need for the trial court to resolve the ultimate merits of a right claimed to be
important (such as, here, CEQA compliance and a fair hearing) does “not
necessarily foreclose the plaintiff from obtaining attorney fees” under
section 1021.5. (Woodland Hills Residents Assn., Inc. v. City Council (1979)
23 Cal.3d 917, 938 (Woodland Hills) [addressing recoverability of fees in
mandamus action that resulted in remand to local agency for further
findings].) In such a case, the trial court, exercising “its traditional equitable
discretion (now codified in § 1021.5), 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.; see, e.g., Rich v. City of Benicia
(1979) 98 Cal.App.3d 428, 436 (Rich) [affirming plaintiff’s entitlement to fees
under Woodland Hills standard where parties settled CEQA suit without
determination that city actually violated CEQA].) Where the record
“indicates, at the very least, that the court confronted substantial questions”
as to the merits of the ultimate issue, the trial court in its discretion must
determine “from a realistic perspective, whether or not the litigation
has ‘resulted in the enforcement of an important right affecting the public
interest’ within the meaning of section 1021.5.” (Woodland Hills, at p. 938.)

37
The City and Safeway do not discuss this legal standard much less argue the
court abused its discretion in concluding it was met here.
Here, the trial court found that Save Petaluma vindicated an important
right because “[i]t enforced both CEQA and the claim that [the City]
improperly decided to approve the Project solely because of [Safeway’s] threat
of lawsuit. [The City and Safeway] contend that [Save Petaluma] failed to
prevail on either issue but, as explained, [Save Petaluma] had been
successful at each stage of the action while the stay and preliminary
injunction it obtained had the practical effect of preventing the Project and
undoing the approvals at issue.” We presume the trial court acted within its
discretion in concluding this prong was met unless the City and Safeway
affirmatively demonstrate otherwise (Jenkins, supra, 107 Cal.App.5th at
p. 649), and they must convince us the trial court was “ ‘ “clearly wrong” ’ ”
(Kennedy Com., supra, 91 Cal.App.5th at p. 457).
They have not done that. They do not argue the trial court lacked
discretion to decide that this lawsuit, on these facts, enforced an important
right. “ ‘Arguments should be tailored according to the applicable standard of
appellate review,’ ” and the “[f]ailure to acknowledge the proper scope of
review is a concession of a lack of merit.” (Sonic Manufacturing Technologies,
Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465.)
Nor does anything in Canyon Crest suggest the court lacked such
discretion. The City and Safeway barely discuss that decision. Yet they say
the court’s ruling “blatant[ly] disregard[s]” and “is in direct conflict with” it,
and so we are compelled to address it in some depth.
At issue in Canyon Crest was a CEQA lawsuit challenging a self-
represented defendant’s plan to build a single-family residence on his vacant
hillside property that would have required the removal of a protected oak
38
tree, brought by some of his neighbors who wanted to protect their privacy
and views. (Canyon Crest, supra, 46 Cal.App.5th at pp. 401, 404.) After
filing suit, the neighbors obtained an administrative stay of the project’s
permit approvals based on a showing of a reasonable probability of success
that an EIR was required, and shortly after that the property owner asked
local permitting authorities to vacate his project approvals because he could
not afford to litigate. (Id. at p. 407.) Planning staff recommended doing so
but only reluctantly, noting they did not agree that an EIR was required.
(Ibid.) Acting on that recommendation, the planning board vacated the
project approvals but said that the application would remain on file, and that
it would be processed “in accordance with all relevant regulations” if the
property owner wanted to pursue it further. (Ibid.) One board member
indicated that the property owner had lawfully met every requirement for a
permit, expressed disappointment the project was not going forward and said
the neighbors had “ ‘abused’ ” CEQA. (Canyon Crest, at p. 407.) In these
circumstances, the appellate court upheld the trial court’s ruling that the
plaintiffs were not entitled to an award of private attorney general fees.
As relevant here, Canyon Crest held the trial court did not abuse its
discretion in finding that the lawsuit did not result in the enforcement of an
important right affecting the public interest. (Canyon Crest, supra,
46 Cal.App.5th at p. 409.) Contrary to the City’s and Safeway’s broad
interpretation of the decision, the appellate court did not hold that this was
because obtaining an EIR was legally required in order to satisfy this prong.
Quite the opposite: it declined to rule that broadly. In upholding the court’s
ruling, it specifically said that the trial court did not require the plaintiffs to
“actually ‘obtain or secure additional environmental review’ ” in order to
prove that the lawsuit vindicated an important right (rejecting an argument
39
the trial court had erred in this regard), but merely “cited” the failure to
obtain such relief “as evidence supporting its conclusion that the litigation did
not enforce any important rights and the stay merely preserved the status
quo pending trial.” (Id. at p. 410, italics added.)9 Hence, the appellate court
imposed no categorical rule that obtaining such relief is a pre-condition for
obtaining private attorney general fees in a CEQA case.
In upholding the trial court’s exercise of discretion to deny fees, the
appellate court also addressed two other issues. It held that merely alleging
a viable CEQA claim is not sufficient to satisfy this prong. (Canyon Crest,
supra, 46 Cal.App.5th at p. 411.) It also held the trial court was within its

9 The City and Safeway assert the trial court “disregarded” not only
Canyon Crest in this regard but also four other CEQA cases also “finding” the
same thing. Those cases, cited only in a footnote string citation without
discussion (or even pinpoint page citations), impose no such requirement
either. They reflect only that securing an EIR can be sufficient to meet the
vindication of an important public right prong in a CEQA case. None hold it
is required. (See Schwartz v. City of Rosemead (1984) 155 Cal.App.3d 547,
557-558; Starbird v. County of San Benito (1981) 122 Cal.App.3d 657, 665;
Friends of “B” Street v. City of Hayward (1980) 106 Cal.App.3d 988, 993;
Rich, supra, 98 Cal.App.3d at pp. 435-436.) Three were cases that went to
judgment, and one involved a settlement (Rich). None address a court’s
discretion to find an important public right has been vindicated in a CEQA
case that has been dismissed after protracted litigation in which provisional
relief has been granted preventing a challenged development project from
coming to fruition at all.
Nor does Nat’l Parks & Conservation Assn. v. County of Riverside
(2000) 81 Cal.App.4th 234, a case newly cited in the reply brief but not
discussed. That case stands for the proposition that when a successful
challenge to the adequacy of an EIR is reversed on appeal, the plaintiff is no
longer a successful party for purposes of recovering private attorney general
fees and the resulting fee award must be automatically reversed. (See id. at
pp. 236, 239.)

40
discretion to conclude that the plaintiffs’ defeat of the project was not by itself
sufficient to prove that an important right had been vindicated, given the
facts. (Id. at pp. 410-411.) On this point, it reasoned there was no evidence
local planning authorities would change their approach to the project if the
property owner decided to reapply for permits, and “all indications” in the
record were that they in fact continued to believe no CEQA review was
required. (Canyon Crest, at pp. 410-411.)
In short, Canyon Crest in no way categorically precludes a finding that
an important right has been vindicated when a CEQA action has been
dismissed without an order or agreement to prepare an EIR. Moreover, the
trial court’s discretion in Canyon Crest to decide no important right was
vindicated on the facts of that case does not mean the trial court in this case
was compelled as a matter of law to conclude the same thing (i.e., had no
discretion to conclude otherwise).10 (See, e.g., Mejia v. City of Los Angeles
(2007) 156 Cal.App.4th 151, 158 [“Those opinions affirming a discretionary
ruling [to deny attorney fees under section 1021.5] do not compel the
conclusion that the ruling here [awarding them] was an abuse of discretion”].)
In sum, appellants’ argument concerning this element, all of about two
pages, is insufficient to demonstrate error.

10 Save Petaluma also argues the case is distinguishable. We agree.
Among other reasons, there is no evidence whatsoever the City regards the
gas station matter as only theoretically closed but in actual truth only in
remission, with the intent of re-approving the project if Safeway changes its
mind. Furthermore, this case involves provisional relief that the trial court
found had the effect of a permanent injunction; that was not true in Canyon
Crest. And there is a factual record here of documented threats to human
health posed by the proposed gas station that, although contested, the trial
court could impliedly find the lawsuit prevented from materializing. None of
that record material has been discussed or acknowledged.

41
For the first time in their reply brief, they elaborate in much greater
depth on this issue, citing additional cases and also making a new factual
argument about the state of the evidence. We decline to consider those new
arguments and authorities. “ ‘It is elementary that points raised for the first
time in a reply brief are not considered by the court.’ ” (Herrera v. Doctors
Medical Center of Modesto (2021) 67 Cal.App.5th 538, 548; accord, United
Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 157-158
(United Grand Corp.); see also Benach v. County of Los Angeles (2007)
149 Cal.App.4th 836, 852 & fn. 10 [more fully developed argument in reply
brief disregarded]; accord, LNSU #1, LLC v. Alta Del Mar Coastal Collection
Community Assn. (2023) 94 Cal.App.5th 1050, 1070-1071 [same].)
3. Appellants Have Forfeited Their Challenge to the Trial
Court’s Finding That the Litigation Conferred a
Significant Benefit to the Public or Large Class of Persons.
The City and Safeway argue the lawsuit also did not confer “a
significant benefit, whether pecuniary or nonpecuniary, . . . on the general
public or a large class of persons” (§ 1021.5). The reason, they argue, is
because “[t]here was no evidence that abandonment of the project . . .
conferred a significant benefit on anyone—other than, possibly, the existing
local gas station competitors.” This argument is too undeveloped for us to
consider it. It contains no legal analysis, once again is not tailored to our
abuse of discretion standard of review and is conclusory.
In assessing whether litigation confers a “significant benefit” on “the
general public or a large class persons” (§ 1021.5), “ ‘[t]he benefit may be
conceptual or doctrinal and need not be actual or concrete; further, the
effectuation of a statutory or constitutional purpose may be sufficient.’
[Citation.] Thus, successful CEQA actions often lead to fee awards under

42
section 1021.5.” (RiverWatch v. County of San Diego Dept. of Environmental
Health (2009) 175 Cal.App.4th 768, 781.) Furthermore, “The extent of the
public benefit need not be great to justify an attorney fee award. (See, e.g.,
Protect Our Water v. County of Merced[, supra,] 130 Cal.App.4th [at p.] 496
[significant public benefit where litigation prompted agency to improve
methods of creating and managing its CEQA records].) The trial court
determines ‘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, supra, 23 Cal.3d at pp. 939-940.)” (Ibid.)
Here, the trial court found that Save Petaluma’s success “benefited the
public at large by asserting important public rights,” including “not only
ensuring compliance with CEQA but asserting that an agency must not
preemptively decide to approve a project simply because the proponent
threatens to sue if the agency does not approve the project.” It found that
“[b]oth of these issues raise broad general concerns over democracy and
informed self-government. In this, the court is again mindful that both the
public and public participation hold a ‘privileged position’ in the CEQA
process based on fundamental ‘notions of democratic decision-making.’
Concerned Citizens of Costa Mesa, Inc. v. 32nd District Agricultural
Association (1986) 42 Cal.3d 929, 936. As stated in Laurel Heights
Improvement Association v. Regents of the University of California[, supra,]
47 Cal.3d [at p.] 392, ‘[t]he EIR process protects not only the environment but
also informed self-government.’ ”
Appellants articulate no argument that the trial court abused its
discretion in concluding the litigation sufficiently benefited the general public
to qualify for a fee award. They do not discuss or apply the applicable legal
43
standard. They do not even address the trial court’s ruling. (Cf. Artus,
supra, 76 Cal.App.5th 1043, 1059 [argument as to whether party prevailed
for purposes of attorney fee award “is unpersuasive, as it utterly fails to come
to grips with [trial judge’s] detailed analysis”].) For these reasons, Save
Petaluma, in addition to addressing the merits of this issue, argues they have
forfeited this claim of error. We agree. Indeed, the reply brief is practically
silent on this issue: it devotes just a single conclusory paragraph to this
element that is devoid of any legal analysis and addresses none of Save
Petaluma’s arguments—not even the forfeiture point. Given the conclusory
and undeveloped state of appellants’ briefing on this issue, we decline to
consider it. (See United Grand Corp., supra, 36 Cal.App.5th at p. 153
[appellate court disregards conclusory arguments not supported by argument
and legal authority or that “ ‘fail to disclose the reasoning by which the
appellant reached the conclusions he wants us to adopt’ ”]; see also id. at
pp. 156-157.)
4. The Trial Court’s Finding That the Necessity for and
Burden of the Litigation Merited a Fee Award Was
Supported by Substantial Evidence.
The City and Safeway next argue Save Petaluma failed to prove that
“the necessity and financial burden” of litigation justified an award of fees
(§ 1021.5). Again, we are not persuaded.
This element “ ‘ “really examines two issues: whether private
enforcement was necessary and whether the financial burden of private
enforcement warrants subsidizing the successful party’s attorneys.’ ” ’
(Whitley, supra, 50 Cal.4th 1206, 1214.) The City and Safeway do not argue

44
the “necessity” prong was not met.11 (See id. at pp. 1214-1215 [explaining
“necessity” standard].) They focus solely on the “financial burden” prong,
which requires courts to weigh the costs and financial benefits of the
litigation. (See id. at pp. 1215-1216.) A litigant cannot recover fees under
section 1021.5 when their expected financial gains from the litigation offset
their litigation costs. (See Whitley, at p. 1211.) But when the cost of
litigation is “ ‘out of proportion’ ” to the plaintiff’s individual financial stake
in the case, an award of fees is appropriate. (Id. at p. 1215; see also id. at
p. 1223.)
In arguing the financial burden prong was not met, the City and
Safeway assert a series of undeveloped points that do not meaningfully
discuss either the law or the record, and do not articulate any claim of error
in terms of any standard of review. They assert: (1) there was “no evidence,
and barely any argument . . . addressing the anticipated or potential benefits
of the litigation”—without explaining what kind of evidence was required,
and making no effort to show they opposed the motion on the theory that
such evidence was required (or, if not, to show that we can review the issue
anyway)12; (2) the trial court “utterly failed to conduct the ‘financial benefit

11 That requirement “has long been understood to mean simply that
public enforcement is not available, or not sufficiently available” (Whitley,
supra, 50 Cal.4th at p. 1217), such as where decisions by a public agency are
themselves the subject of the lawsuit (see id. at p. 1215).
12 They did not oppose the attorney fee motion on this ground (at least,
not in their written opposition papers) and we are under no obligation to
ascertain whether the issue was preserved elsewhere in the record for our
review or, alternatively, whether it needed to be. As the appellants, the City
and Safeway must affirmatively demonstrate that they preserved this
argument in the trial court (including by citing to the record showing exactly
where the issue was raised), or else explain why the issue can be raised for
the first time on appeal. When an appellant does neither, we may deem the
45
versus burden’ weighing analysis required by [Whitley]”—without explaining
what that standard entails, and citing no authority that the trial court was
required to weigh anything explicitly in its written findings; (3) there was
“substantial evidence indicating that [Save Petaluma’s] litigation may have
been funded, at least in large part, by economic competitors of Safeway” and
that “[c]ourts have routinely denied fee motions in cases involving economic
competitors” (italics added), citing four cases but analyzing none of them and
making no argument the court lacked discretion to grant the motion in such
circumstances; and (4) asserting that “the named members of [Save
Petaluma]”—whom they do not identify—“expressed their private economic
motives for litigation the action, including feared adverse impacts on their
home values,” accompanied by string citations to the record with no
explanation or summary of the actual evidence, and asserting that “[f]ee
motions brought by property owners with similar interests have repeatedly
been denied” (italics added), again supported by a string citation to authority
without analysis, and again articulating no legal argument that the court
lacked discretion to grant the motion in such circumstances.
None of these points are sufficiently developed for us to consider them.
In addition to the reasons we have already noted, the trial court expressly
addressed appellants’ arguments about the supposed involvement of

issue forfeited. (See Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th
771, 798-802; accord, Colombo v. BRP US Inc. (2014) 230 Cal.App.4th 1442,
1478.) We do so here. An appellate court “has no obligation to cull [a]
lengthy record, ascertain the procedural context in which [the appellant] may
have raised these claims in the trial court, determine whether and how [the
opposing party] opposed the claims, determine whether [the appellant’s]
contentions were ever addressed . . ., and, thereafter, employ the proper
standard of review in resolving such claims.” (Dietz, at p. 801.)

46
economic competitors and the plaintiffs’ concerns for property value
diminution, yet they do not say anything about those rulings. (See Artus,
supra, 76 Cal.App.5th at p. 1059.) We will comment only on those two
subjects, and only briefly.
Regarding economic competitors (i.e., other local gas station owners),
the trial court found that “[i]t may well be that some support for the litigation
came from a competitor,” but concluded that “the mere involvement of
possible competitors does not defeat the right to recover fees.” It explained
that “[w]here the private gains or goals predominate, those factors may
naturally gravitate against an award under section 1021.5.” (Italics added.)
But it implicitly found such interests did not predominate here, noting that
“here, [however], on its face, the litigation achieved important public benefits,
and enforced broadly applicable important public rights, as explained above.”
The court also ruled, citing evidence, that Save Petaluma “demonstrate[d]
that its ‘fundraising was inadequate to cover . . . fees incurred following the
December 3, 2018, hearing[13]—even at a reduced public interest rate—much
less a subsequent lawsuit’ ” and that its counsel “stated that he undertook
the litigation without receiving any fees or payment from the client or any
third party and the firm [had] no expectation of receiving any payment except
from the awards of fees and costs sought in this action.” The court noted that
the attorney “even attached the fee agreement as Ex. 1 to the reply
declaration in support.”

13 This is a reference to the city council’s initial decision to overturn
the planning commission’s approval of the project without an EIR before
reversing itself and ultimately denying that administrative appeal in the
final decision challenged here.

47
The City and Safeway do not discuss this ruling much less show that
the court’s factual findings are not supported by substantial evidence or that
its legal conclusions are an abuse of discretion. They do not even summarize
all material evidence bearing on this issue, including, as Save Petaluma
points out, plaintiff’s counsel sworn declaration under penalty of perjury
refuting their speculation about third-party funding, which the trial court
specifically relied upon. In their reply brief, they say that the attorney
declaration is legally irrelevant because the issue is whether Save Petaluma
itself, not its attorneys, received financial contributions from economic
competitors. But they did not assert that point in their opening brief or in
any way challenge the trial court’s reliance on that evidence. So the
contention is forfeited. (See Herrera v. Doctors Medical Center of Modesto,
supra, 67 Cal.App.5th at p. 548; United Grand Corp., supra, 36 Cal.App.5th
at pp. 157-158.) In addition, they fail to explain the point with any reasoned
legal argument and so it is forfeited for that additional reason.
The trial court also ruled that concern for local property values did not
render Save Petaluma ineligible for a fee award, citing Keep Our Mountains
Quiet v. County of Santa Clara (2015) 236 Cal.App.4th 714 (Keep Our
Mountains Quiet). It stated, “[n]othing indicates that this action only
achieved protecting the property values of certain property owners and this
issue appears to be minimal and speculative.” (Italics added.) Here again,
the City and Safeway have made no attempt to show this finding is factually
unsupported or legally an abuse of discretion. Moreover, the authority the
trial court cited, Keep Our Mountains Quiet, fully supports its exercise of

48
discretion.14 (See Keep Our Mountains Quiet, at pp. 739-740.) Appellants do
not even mention, much less discuss, that case.
Finally, the City and Safeway also assert—without explanation or
discussion and supported only by a string citation to two cases—that the trial
court should have allowed them to conduct discovery into the possible
involvement of economic competitors. This one-sentence contention is
forfeited. It is conclusory and undeveloped, contains no citation to the record,
and is not properly captioned under an argument heading as a distinct legal
issue as it should be. (See United Grand Corp., supra, 36 Cal.App.5th at
p. 153; Tsakopoulos Investments, LLC v. County of Sacramento (2023)
95 Cal.App.5th 280, 309-310.)
5. Catalyst Theory
As we have noted, Colusa, supra, 145 Cal.App.4th 637 supports Save
Petaluma’s assertion that proof of the additional catalyst elements is
unnecessary because this is not a catalyst case. Because appellants have not
shown the court abused its discretion in deeming Save Petaluma a
“successful party” under a non-catalyst theory, we need not resolve

14 It affirmed an award of private attorney general fees to neighbors
who filed a successful mandamus action challenging a local development
project under CEQA. It held in relevant part the trial court did not abuse its
discretion in concluding the financial burden criterion was satisfied despite
evidence that some of the neighbors were concerned about a possible
reduction in their property values. (Keep Our Mountains Quiet, supra,
236 Cal.App.4th at pp. 739-740.) Because, like here, the plaintiffs did not
“enjoy[] any direct pecuniary benefit” from the ligation and the defendant
submitted no evidence attempting to quantify any potential property
value reductions, the amount of financial incentive was “ ‘indirect and largely
speculative.’ ” (Id. at pp. 739, 740.)

49
appellant’s contention that it did not establish the additional elements
required by the catalyst theory.
But even if we reached appellants’ argument that Save Petaluma did
not meet the elements of the catalyst theory, we would reject it. For reasons
we have already discussed, the trial court’s determination that the suit was
in effect a “catalyst motivating the defendants to provide the primary relief
sought” (Tipton-Whittingham, supra, 34 Cal.4th 604, 608, italics added) by
the petition—here, refraining from approving and constructing a project
without CEQA compliance—and the “defendant[s] change[d] [their] behavior
substantially because of, and in the manner sought by, the litigation”
(Coalition for a Sustainable Future in Yucaipa v. City of Yucaipa (2015)
238 Cal.App.4th 513, 521 (Yucaipa)) are supported by substantial evidence.
In catalyst cases, in addition to the elements specified by
section 1021.5, to recover fees under section 1021.5, a fee claimant must
show: “that the lawsuit had merit and achieved its catalytic effect by threat
of victory, not by dint of nuisance and threat of expense,” and “that the
plaintiffs reasonably attempted to settle the litigation prior to filing suit.”
(Tipton-Whittingham, supra, 34 Cal.4th at p. 608.) Neither requirement is
especially onerous.
The merits inquiry entails a determination “that the lawsuit is not
‘frivolous, unreasonable or groundless.’ ” (Graham, supra, 34 Cal.4th 553,
575.) It is “not unlike the determination [a trial court] makes when asked to
issue a preliminary injunction, i.e., . . . a determination at a minimum that
‘ “the questions of law or fact are grave and difficult.” ’ ” (Id. at pp. 575-576.)
Here, as we have already discussed and the trial court indicated, Save
Petaluma prevailed on every pretrial motion, including defending against a
demurrer and anti-SLAPP motion and obtaining a preliminary injunction
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and stay. As we have said, the trial court could reasonably infer from “the
timing and nature” of events that the City and Safeway were “acting under
compulsion of the preliminary injunction” (see Colusa, supra,
145 Cal.App.4th at p. 651) rather than for some other reason when they
allowed the project to languish without coming to fruition. In short, this case
easily satisfies the merits requirement.
The settlement opportunity requirement does not require “[l]engthy
prelitigation negotiations”; “nor is it necessary that the settlement demand be
made by counsel, but a plaintiff must at least notify the defendant of its
grievances and proposed remedies and give the defendant the opportunity to
meet its demands within a reasonable time.” (Graham, supra, 34 Cal.4th at
p. 577.) “What constitutes a ‘reasonable’ time will depend on the context.”
(Ibid.) As examples of how the latter requirement may be met, the Graham
court cited two cases. In one, plaintiffs’ counsel sent a letter outlining
plaintiffs’ concerns about defendant’s school for delinquent girls, it
“appear[ed] that subsequent discussions and correspondence followed” but
resulted in no change, and plaintiffs then filed their lawsuit. (See S.D. v.
Faulkner (1989) 705 F.Supp. 1361, 1363, cited in Graham, at p. 577.) The
other case is Garrison v. Board of Directors (1995) 36 Cal.App.4th 1670
(Garrison), in which the Second District discussed section 21177,
subdivision (b) of the Public Resources Code, which requires a person to
object to the approval of a project orally or in writing “during the public
comment period” or before “the close of the public hearing on the project”
before he or she may pursue an action for violation of CEQA. (See Garrison,
at p. 1676 and Pub. Resources Code, § 21177, subd. (b), cited in Graham, at
p. 577.) Garrison explained that the statutory purpose of subdivision (b) “is
to inform the decisionmaking body of the contentions of the interested parties
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before litigation is instituted, so that it has the opportunity to address the
contentions and hopefully render litigation unnecessary.” (Garrison, at
p. 1676.) By citing Garrison and Public Resources Code section 21177 in
Graham, our high court clearly indicated that a party’s participation and
airing of its grievances during the CEQA administrative process suffices to
meet the judicially established requirement under section 1021.5 of
“notify[ing] the defendant of its grievances and proposed remedies and
giv[ing] the defendant the opportunity to meet its demands within a
reasonable time” before filing litigation. (Graham, at p. 577.)
Appellants argue that Save Petaluma was not even formed until after
the City approved the gas station project. But Garrison itself holds that is of
no moment. Garrison discussed and applied the rule that the CEQA
exhaustion requirement is satisfied for an organization formed after the
approval of a project as long as any member of the organization appeared
individually at the administrative hearing and objected to the project on
relevant grounds. (See Garrison, supra, 36 Cal.App.4th at pp. 1676-1677
[where individual objected at agency hearing that EIR was required, “the
requirements for exhaustion of administrative remedies were met here” for
suit by later-formed organization].) That principle, codified as an exception
to the general exhaustion requirement (see Pub. Resources Code, § 21177,
subd. (c)), “signifies that ‘[t]he purposes of CEQA . . . are not served by
requiring proof in the record of compliance with the [exhaustion]
requirement’ ” by an organization itself “ ‘when there is no real dispute that
the requirement was in fact met.’ ” (Garrison, at p. 1677.)

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III.
Amount of Attorney Fees
The trial court awarded Save Petaluma $613,893.75 in attorney fees.
In calculating this amount, it awarded the full amount of Save Petaluma’s
requested lodestar (but for a few hours claimed in connection with attending
the hearing), applied a multiplier to a portion of the fees as requested, but
denied Save Petaluma’s request for a 2.0x multiplier and instead applied a
lower multiplier of 1.5x. The City and Safeway now challenge the amount as
excessive, once again on many grounds.
We review the amount of an attorney fee award for abuse of discretion.
(Howell v. State Dept. of State Hospitals (2024) 107 Cal.App.5th 143, 157.) As
this court has explained, “[t]he ‘ “only proper basis of reversal of the amount
of an attorney fees award is if the amount awarded is so large or small that it
shocks the conscience and suggests that passion and prejudice influenced the
determination.” ’ ” (Korchemny v. Piterman (2021) 68 Cal.App.5th 1032,
1051.)
The amount of this award does neither, and extended discussion is
unnecessary. The trial court explained its reasons in a detailed, four-page
portion of its ruling, supported by extensive citation to caselaw and evidence.
We affirm the award for the reasons stated succinctly by our Supreme Court:
“In the present matter, the superior court based the award of attorney fees to
the prevailing party, . . . , on the number of hours expended by counsel
multiplied by the prevailing market rate for comparable legal services . . .
where counsel is located. No error appears. The superior court used a proper
standard in calculating the fees. [¶] There was also sufficient evidence to
support the amount of the award; in addition to the detailed documentation
submitted by [the prevailing party], the superior court was familiar with the
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quality of the services performed and the amount of time devoted to the
case.[15] The award was not clearly wrong; the superior court did not abuse
its discretion.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1096, fn.
omitted.)
The City’s and Safeway’s many arguments challenging this award fail
to take into account the court’s stated reasons for the amount that it
awarded. Nor do they discuss the actual evidence. Some claims of error are
not supported by any citation to legal authority. The City and Safeway
attempt to shift their burden to demonstrate error by suggesting the trial
court failed to cite any authority supporting the amount awarded. (See
Denham v. Superior Court, supra, 2 Cal.3d 557, 564; Bishop v. The Bishop’s
School (2022) 86 Cal.App.5th 893, 910; Shiheiber v. JPMorgan Chase Bank,
N.A. (2022) 81 Cal.App.5th 688, 696.)
For example, they argue plaintiff’s counsel unreasonably sought fees
for excessive hours and challenge all of counsel’s billings other than 52 hours
of time entries that they say “directly relate” to obtaining the administrative
stay. “No fee award was warranted or justified for the 750 plus hours spent
on other tasks,” they assert, including for the administrative hearing,
obtaining the administrative record and pursuing discovery. They do not
challenge any particular time entries as unreasonable or excessive; rather,
they say that obtaining the stay was the “predicat[e]” of Save Petaluma’s fee
motion and therefore recoverable fees should be limited to fees directly
incurred with that category of work. The argument, for which they cite no

15 In this case, the superior court’s familiarity with the quality of legal
representation was not as the trial judge who presided over the underlying
litigation but as the judge who reviewed the extensive record of proceedings
in ruling on the postjudgment motions regarding costs and attorney fees.

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authority, is without merit. It has long been established that, “absent facts
rendering the award unjust, parties who qualify for a fee should recover for
all hours reasonably spent.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 632-
633, italics added.) Indeed, under the private attorney general theory, even
the fees incurred to prepare the fee motion itself are compensable. (Id. at
pp. 623-624.) The trial court considered, and implicitly rejected, Safeway’s
argument that only fees incurred directly in connection with obtaining the
stay are recoverable, which they also made in their trial court opposition
papers. They have failed to show the court abused its discretion in doing so.
Also illustrative is their argument that the court erred in applying a
multiplier to compensate for contingent risk. They assert this was error
because there was evidence “suggesting” that plaintiff’s counsel received
third-party funding from outside sources “and thus did not take the case on a
contingency.” This argument fails at the threshold, because they do not
argue there is no evidence supporting a contrary finding. (See Slone v. El
Centro Regional Medical Center (2024) 106 Cal.App.5th 1160, 1173 [on
substantial evidence review, appellate court “accept[s] all evidence that
supports the judgment, [and] disregard[s] contrary evidence”);Yucaipa, supra,
238 Cal.App.4th at p. 522 [appellate court must affirm trial court’s factual
determination “if there is evidence to support its finding, . . . even if other
evidence would support a contrary finding”].)
It also distorts the record, badly. They do not discuss any of the
evidence on this subject they say the trial court “dismissed” or explain what
portion of fees the evidence supposedly shows was paid by third parties.
Moreover, the evidence they do cite does not suggest that plaintiff’s counsel
did not face contingent risk in taking on this lawsuit (much less compel such
a finding as a matter of law); at most it is evidence of some fundraising
55
efforts.16 Without citing to specific portions of the record supporting their
characterization of the evidence, they cannot carry their burden on appeal of
demonstrating the existence of error. (See Slone v. El Centro Regional
Medical Center, supra, 106 Cal.App.5th at p. 1172; accord, Casey v. Hill
(2022) 79 Cal.App.5th 937, 975 [“[w]e reject this argument because it is made
without any record support”].)
And, once again, the City and Safeway ignore vast swaths of the record,
which contains ample substantial evidence that Save Petaluma’s counsel had
no expectation of receiving compensation for his efforts (i.e., faced risk). As
we have noted, he stated under penalty of perjury that the fundraising was
inadequate to cover his firm’s fees incurred in the administrative
proceedings, “even at a reduced public interest rate,” “much less [in] a
subsequent lawsuit.” Save Petaluma’s fee agreement reflects that, but for
costs, its counsel took the judicial case on a pro bono basis with no
expectation of payment other than the possible recovery of attorney fees. And
its counsel confirmed under oath—twice—that nobody was paying his fees in
the lawsuit.17 Save Petaluma asserts in its brief that “some funding was

16 Sandwiched within voluminous and largely irrelevant record
citations, appellants cite evidence that local gas station owners were
encouraged to, and possibly did, contribute anonymously to an opposition
fundraising campaign. But no amounts are specified nor is there evidence of
the use to which any such funds were put, apart from a single email
speculating third-hand that some of the money was paid to “the Sacramento
law firm cranking out as much paper as Safeway’s lawyers.”
17 We quote what he said the second time on this subject:
“Paragraph 28 of my earlier declaration asserted, ‘I agreed to represent
Save Petaluma on a pro bono basis with the client being responsible only for
litigation costs. My firm has received no fees from the client, or any third
party associated with the litigation, and there has never been any
understanding or expectation of receiving any fees from the client or any
56
obtained to support attorneys’ fees incurred during the administrative
proceedings”, and we accept that concession. (See Davenport v. Blue Cross of
California (1997) 52 Cal.App.4th 435, 444, fn. 4 [“Although briefs are outside
the record, we may take the factual assertions in a party’s appellate brief as
admissions”].) But Save Petaluma did not seek a multiplier to compensate
for contingent risk for the fees incurred in the administrative proceedings,
nor did the court award a multiplier for that portion of the case. In short, the
City’s and Safeway’s challenge to the use of a multiplier to compensate
counsel for contingent risk has no support in the record.
We could go on to address all of the issues they raise concerning the
amount of the award, but it would lengthen what is already a lengthy
opinion. We have considered their remaining arguments and find them
equally devoid of merit (and/or forfeited, insofar as there are several raised
improperly for the first time in their reply brief).
DISPOSITION
The judgment is affirmed. Respondent shall recover its costs.

third party.’ Respondents suggest that my firm is receiving payment for our
representation of Save Petaluma in the litigation from third parties ‘not
associated with the litigation.’ I now clarify my testimony to confirm that my
firm has received no fees from Save Petaluma, its members or any third party
for representing Save Petaluma in this litigation. My firm also has no
expectation of receiving any such fees for representing Save Petaluma in this
litigation other than the private attorney general fees requested by this
motion.” (Italics added.)

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STEWART, P. J.

We concur.

RICHMAN, J.

DESAUTELS, J.

Save Petaluma v. City of Petaluma (A169925)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11114666. Public record. Not legal advice.