Redondo Beach Waterfront, LLC v. City of Redondo Beach

Filed 7/9/20

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

REDONDO BEACH B291111

WATERFRONT, LLC,

Los Angeles County

Plaintiff and Respondent, Super. Ct. No. BS168564

v.

CITY OF REDONDO BEACH,

Defendant;

BUILDING A BETTER

REDONDO et al.,

Intervenors and Appellants.

*Pursuant to California Rules of Court, rules 8.1100, 8.1105(b), and

8.1110(a), this opinion is certified for publication with the exception of

part 3 of the Discussion.

REDONDO BEACH B294659

WATERFRONT, LLC,

Los Angeles County

Plaintiff and Respondent, Super. Ct. No. BS168564

v.

CITY OF REDONDO BEACH,

Defendant and Respondent;

BUILDING A BETTER

REDONDO et al.,

Intervenors and Appellants.

APPEALS from a judgment and an order of the Superior

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

Affirmed.

Angel Law, Frank P. Angel and Ellis Raskin for

Intervenors and Appellants.

Shumener, Odson & Oh, Betty M. Shumener, Henry H. Oh,

and John D. Spurling for Plaintiff and Respondent.

Mintz Levin Cohn Ferris Glovsky and Popeo, Jonathan

Welner, Antony D. Nash and Samantha J. Duplantis for

Defendant and Respondent City of Redondo Beach.

_______________________________________

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INTRODUCTION

In this consolidated opinion, we decide two of the multiple

appeals currently pending in this court related to a proposed

waterfront development project (the Project) in the City of

Redondo Beach (the City).

In 2010, a majority of the City’s residents supported

improving the waterfront area and to that end passed an

initiative laying the groundwork for the City to establish a

public-private partnership with a real estate developer.

Respondent Redondo Beach Waterfront, LLC (the Developer) has

worked with the City and has apparently expended more than

$14 million since 2010 in an effort to move the Project forward. In

2016, however, residents of the City passed an initiative

(Measure C) that would, if applied to the Project, substantially

curtail the Project. The Developer, the City, and individual

residents and resident groups (including appellants Wayne Craig,

Martin F. Holmes, and Building a Better Redondo, collectively

the Residents) are now engaged in Project-related litigation on

several fronts.

In the published portion of this opinion, we address the

primary legal issue presented in this case: whether the Developer

has obtained statutory vested rights regarding the Project as

against the City and if so, whether those rights vested before or

after the passage of Measure C. The Developer contends it

obtained vested rights under Government Code section 66498.1,

which provides that a local agency’s approval of a vesting

tentative map confers upon a developer the right to proceed with

development in substantial compliance with the ordinances,

policies, and standards in effect at the time the vested tentative

map is approved. It is undisputed that the City approved a

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vesting tentative tract map for the Project prior to the passage of

Measure C. The Residents argue the statute does not apply to

projects located in a coastal zone (and specifically does not apply

to the Project) because such projects require the approval of the

California Coastal Commission (Coastal Commission) under the

California Coastal Act of 1976 (Coastal Act). Their position is

unsupported, however.

Although the Residents attempt to make this issue a

complicated one, it is not. The City deemed the vesting tentative

tract map for the Project complete before city residents passed

Measure C. We therefore conclude, as the trial court did, that the

Developer has obtained vested rights against the City under

Government Code section 66498.1 and those rights vested before

the passage of Measure C. We also reject the Residents’

subsidiary argument that the vested rights issue is not ripe for

decision. Accordingly, we affirm the judgment in favor of the

Developer.

In the unpublished portion of this opinion, we address the

Residents’ appeal from an order of the court finding they were not

a “prevailing party” or a “successful party” in this litigation—a

ruling that precludes them from recovering litigation costs under

Code of Civil Procedure section 1032 as well as attorney’s fees

under Code of Civil Procedure section 1021.5. Because the

Residents did not fulfill their litigation objective, i.e., they did not

obtain a ruling that would allow Measure C to be applied to the

Project, and did not obtain any significant benefit in the

litigation, we affirm the order.

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FACTS AND PROCEDURAL BACKGROUND1

The Waterfront Project

The Redondo Beach King Harbor Pier area (the Waterfront)

has been, by all accounts, in need of improvement for some time.

In 2010, city residents voted on and approved Measure G, which

authorized an additional 400,000 square feet of net new

development on the Waterfront. Measure G, and specifically the

zoning ordinances contained within it, sought to amend the City’s

local coastal program2 to permit development in the Waterfront

area. The Coastal Commission subsequently certified the

amendment and the newly-passed zoning ordinances went into

effect.

In order to facilitate improvements in the Waterfront, the

City acquired leaseholds and other property interests in the area

and sought out a private developer to assist with the Project. The

City represented that the Project would include renovation of

150,000 square feet of existing building area and up to 400,000

1 The court construed the Developer’s motion (titled “motion for

determination of bifurcated issues”) as, essentially, a motion for

judgment on the pleadings. Accordingly, the court based its ruling

upon those allegations of the verified petition admitted in the City’s

first amended answer, and upon matters of which it took judicial

notice. We take judicial notice of those matters as well. (Evid. Code, §

459, subd. (a).)

2 Under the Coastal Act, a city such as Redondo Beach that includes

areas of coastal zone within its boundaries must adopt a local coastal

program consisting of a land use plan and zoning ordinances governing

land use in coastal zones. Local coastal programs must be certified by

the Coastal Commission as in compliance with the Coastal Act. (See

generally 7 Miller & Starr, Cal. Real Estate (4th ed. 2019) §21:37,

pp. 21-249 to 21-259.)

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square feet of new development. Ultimately, the City selected

CenterCal Properties, LLC, the Developer’s predecessor-in-

interest, as the developer for the Project.3 In 2013, the Developer

and the City entered into an exclusive negotiating agreement

regarding the Project.

In June 2016, the Developer submitted an application for

approval of the Project which included a vesting tentative tract

map. The City notified the Developer in writing on June 23, 2016

that its application for approval of Vesting Tentative Tract Map

No. 74207 (the Map) was “deemed complete.”

In early August 2016, the Harbor Commission certified the

Environmental Impact Report (EIR) and approved the coastal

development permit, conditional use permit, Harbor Commission

design review, and the Map for the Project (collectively,

Waterfront Entitlements). The Harbor Commission’s decision

was appealed to the City Council, which approved the Waterfront

Entitlements on October 18 and 19, 2016 by Resolution No. CC-

1016-099.4 The resolution explicitly noted that the City’s approval

of the Map “shall confer a vested right to proceed with

development in substantial compliance with the ordinances,

policies, and standards described in Section 66474.2 of the

Government Code of the State.”

In January 2017, the Project continued to move forward as

the City and the Developer signed an Agreement for Lease of

Property and Infrastructure Financing (the Agreement) that

3We refer to CenterCal Properties, LLC and Redondo Beach

Waterfront, LLC collectively as the Developer.

4The City’s approval of the Waterfront Entitlements was appealed to

the Coastal Commission.

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(among other things) identified specific parcels of land the City

would lease to the Developer in connection with the Project.

Although the Agreement largely preserved the City’s right to

approve or disapprove the Developer’s plans for any reason, it

acknowledged the City might have preexisting obligations to the

Developer regarding vested rights that would be unaffected by

the Agreement.

Measure C

Although the City and the Developer were moving forward

with the Project, residents of the City had concerns about the

proposed development. On June 28, 2016, five days after the City

deemed the vested tentative tract map application for the Project

to be complete, the Residents and others submitted a “Notice of

Intent to Circulate Petition” to the City seeking to place a local

initiative—the King Harbor Coastal Access, Revitalization, and

Enhancement Act, later designated Measure C—on the ballot for

the next general municipal election. Opponents of the Project

gathered sufficient support and signatures from City residents

and Measure C was placed on the ballot for the election held on

March 7, 2017.

Proponents of the initiative represented that if passed,

Measure C would “stop[ ] construction of a waterfront mall

adding 13,136 daily car trips and doubling development. If built,

80% of ocean views from Harbor Drive will be blocked by 45’ tall

structures nearly 2 football fields long. It paves 1/3 of Seaside

Lagoon, eliminates our popular saltwater pool used by 81,000

people each season, and plops a massive 5-level parking structure

in the harbor entrance.” Measure C proponents urged City

residents: “Don’t sell out our waterfront and 6 acres of public

parks for a pittance in annual lease income. Don’t settle for a

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boat ramp deemed inherently unsafe by every public safety

official patrolling the harbor including Lifeguards and Baywatch

Captains.”

Opponents of Measure C argued that Waterfront repairs

were urgently needed and the financially responsible course was

to continue working with the Developer. Specifically, they

asserted that in the existing public-private partnership, the

Developer “[i]nvests in majority of infrastructure,” “[c]reates a

self-sustaining, environmentally safe, cohesive waterfront,”

“[a]ssumes responsibilities and costs of operations and

maintenance,” and “[e]nsures we can focus resources on other

Redondo Beach concerns.”

In substance, Measure C proposed amendments to two City

ordinances5 which had last been amended in 2010 by Measure G.

Specifically, Measure C contained detailed provisions requiring

the expansion and/or preservation of Seaside Lagoon Regional

Park, preservation of harbor and ocean water views, construction

of a public boat launch ramp, limitation of new off-street parking,

and analysis of traffic patterns. Measure C also modified the

cumulative development cap definition to include space devoted

to parking facilities.

A majority of the voters casting ballots in the March 7,

2017 election voted in favor of Measure C. The City later certified

the vote. As required under Public Resources Code section 30514,

subdivision (a), the City submitted Measure C to the Coastal

5The ordinances at issue are Redondo Beach Municipal Code sections

10-5.1117 (“Development standards: P-PRO parks, recreations, and

open space zone”) and 10-5.811 (“Additional land use regulations: CC

coastal commercial zones”).

8

Commission, which approved the amendments to the City’s local

coastal program.6

One month after voters passed Measure C, the City notified

the Developer that, in the City’s view, the passage of Measure C

triggered the Agreement’s force majeure clause, and that the

Project would be delayed.7

The Developer’s Lawsuit

The Developer initiated the present case in early 2017 by

filing a verified petition for writ of mandate (Code of Civil

Procedure sections 1085 and 1086) and complaint for declaratory

relief and injunctive relief against the City asserting, on various

grounds, that Measure C is invalid and/or unconstitutional and,

in any event, is inapplicable to the Project. Specifically, the

Developer claimed Measure C is invalid because it (1) exceeds the

electorate’s initiative power, (2) conflicts with the City Charter,

(3) is unconstitutionally vague (Cal. Const., art. I, § 7.),

(4) conflicts with the City’s General Plan (Gov. Code, § 65000 et

seq.), (5) is procedurally defective (Elec. Code, §§ 9101, 9201),

(6) conflicts with state law (Cal. Const., art. XI, § 7), and

(7) deprives the Developer of substantive due process (Cal.

Const., art. I, § 7). The request for declaratory relief sought

6At the Residents’ request, we take judicial notice of the official

minutes of the Coastal Commission’s August 2018 meeting. (Evid.

Code, §§ 452, subd. (c), 459, subd. (a).) The request for judicial notice

submitted May 17, 2019 is otherwise denied.

7In a separate case, the Developer sued the City for breach of the

Agreement. We resolved the appeal in that case in a separate opinion.

(Redondo Beach Waterfront, LLC v. City of Redondo Beach (Apr. 27,

2020, B292007) [nonpub. opn.].)

9

orders from the court on multiple issues including, as pertinent

here, that Measure C could not be applied retroactively to the

Project because the Developer’s statutory rights under

Government Code section 66498.1 had vested prior to the

initiative’s passage. The Residents, concerned that the City might

not adequately represent proponents of Measure C, filed a motion

for leave to intervene which the court granted.

The parties and the court agreed that certain dispositive

issues could be addressed as a matter of law based solely on the

pleadings and matters subject to judicial notice. The Developer

filed a motion, essentially styled as a motion for judgment on the

pleadings, contending that its rights had vested against the City

as a matter of law and therefore Measure C could not be applied

to the Project. The Developer relied on the text of Measure C,

which expressly exempted any project as to which development

rights had vested, and Government Code section 66498.1, which

provides that a developer’s rights against a local agency (such as

the City) vest when the agency approves or conditionally

approves a vesting tentative map. It is undisputed that the City

approved the Map on June 23, 2016. The Developer also argued,

as stated in the petition’s second cause of action, that Measure C

conflicts with the City Charter. Finally, the Developer asserted

that Measure C is invalid as a matter of law under Arnel

Development Co. v. City of Costa Mesa (1981) 126 Cal.App.3d 330,

337 (Arnel).8

8 The arguments and ruling relating to the City Charter claim and the

Arnel claim are relevant only to the challenge to the court’s order on

costs and attorney’s fees. We provide additional detail regarding those

issues in section 3, post.

10

With respect to the statutory rights claim, the City

responded that even if it could not apply Measure C to the Project

because the Developer’s rights had vested against it, the Coastal

Commission had the authority to apply Measure C to the Project

in the future.

The Residents also opposed the Developer’s motion, arguing

the Developer could not have vested rights in the Project because,

even as of the time the motion was filed, the Developer had not

yet obtained all the necessary permits and approvals necessary to

complete the Project. Further, the Residents claimed,

Government Code section 66498.1, subdivision (b)—the code

provision relied upon by the Developer as the basis for its vested

rights claim—does not apply to any development situated in

whole or in part in a designated coastal zone because that code

section is superseded by the Coastal Act.

In addition, the parties disagreed as to whether the

controversy was ripe for decision at that time. Both the City and

the Residents argued the matter was not ripe for adjudication

because Measure C had not yet been certified by the Coastal

Commission and it was therefore unknown how, or even whether,

Measure C might impact the Project. The Developer argued the

controversy was ripe because the statute of limitations applicable

to a challenge to a zoning ordinance is 90 days from the time the

measure is enacted and as a result, it was required to challenge

Measure C within that window of time.

The Court’s Rulings and the Appeals

After hearing oral argument on the motion for judgment on

the pleadings, the court issued its final decision on March 22,

2018, finding that the Developer had obtained statutory vested

rights against the City to proceed with the Project in accordance

11

with the Map. The court rejected the Developer’s contentions that

Measure C conflicted with the City Charter and was arbitrary,

capricious, and discriminatory under Arnel.

As an initial matter, the court found the matter ripe for

declaratory relief. The court rejected the City’s contention that

the matter was not ripe because it had not yet attempted to apply

Measure C to the Project. Rather, the court found, the City had

taken at least two actions adverse to the Project and the

Developer with reference to Measure C: notifying the Developer

that the passage of Measure C triggered the force majeure clause

of the Agreement, which the City claimed would delay

performance of the Agreement, and later terminating the

Agreement.

On the issue of vested rights, the court noted Government

Code section 66498.1 provides that “[w]hen a local agency

approves or conditionally approves a vesting tentative map, that

approval shall confer a vested right to proceed with development

in substantial compliance with the ordinances, policies, and

standards described in Section 66474.2.” Further, the court

observed that the Legislature, in adopting Government Code

section 66498.1, intended to “ ‘enable the private sector to rely

upon an approved vesting tentative map prior to expending

resources and incurring liabilities without the risk of having the

project frustrated by subsequent action by the approving local

agency.’ ”

The parties agreed that the Map application was “deemed

complete” by the City on June 23, 2016, and that the City,

through the City Council, subsequently approved the Map by

resolution on October 18, 2016. Moreover, the resolution

explicitly affirmed the Developer’s vested right to proceed with

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the Project in substantial compliance with the ordinances,

policies, and standards in effect at the time. And, the court

stated, even the text of Measure C recognized that it would not

affect any project for which development rights had vested.

The court, applying the plain language of Government Code

section 66498.1 to those undisputed facts, concluded the

Developer’s rights vested on June 23, 2016, when its application

for the Map was deemed complete by the City. Accordingly, the

court found, those rights were unaffected by the passage of

Measure C. The court entered judgment in favor of the Developer

on May 7, 2018. The Residents filed a timely notice of appeal

from the judgment.

As we explain in detail in section 3, post, the Residents

subsequently submitted a request for costs under Code of Civil

Procedure sections 1032 and 1033.5. After the Residents

indicated they also planned to file a motion for attorney’s fees

under Code of Civil Procedure section 1021.5, the court requested

briefing concerning the party or parties that would qualify as a

“prevailing party” (costs) or a “successful party” (attorney’s fees).

The court concluded the Residents did not qualify as either a

“prevailing party” or a “successful party” and entered an order to

that effect on August 16, 2018. The Residents filed a timely notice

of appeal from that order.

We have consolidated the two appeals for purposes of

decision.

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DISCUSSION

The court did not err in finding that the Developer has

statutory vested rights in the Waterfront Project.

1.1. Standard of Review

The question presented turns on the interpretation of

several statutory provisions. We review matters of statutory

interpretation de novo. (People ex rel. Lockyer v. Shamrock Foods

Co. (2000) 24 Cal.4th 415, 432; Nist v. Hall (2018) 24 Cal.App.5th

40, 45.)

“ ‘ “As in any case involving statutory interpretation, our

fundamental task here is to determine the Legislature’s intent so

as to effectuate the law’s purpose.” (People v. Murphy (2001) 25

Cal.4th 136, 142.) We begin by examining the statutory language

because the words of a statute are generally the most reliable

indicator of legislative intent. (People v. Watson (2007) 42 Cal.4th

822, 828; Hsu v. Abbara (1995) 9 Cal.4th 863, 871.) We give the

words of the statute their ordinary and usual meaning and view

them in their statutory context. (People v. Watson, supra, at p.

828.) … “If the statute’s text evinces an unmistakable plain

meaning, we need go no further.” (Beal Bank, SSB v. Arter &

Hadden, LLP (2007) 42 Cal.4th 503, 508.)’ (In re C.H. (2011) 53

Cal.4th 94, 100.) ‘ “Ultimately we choose the construction that

comports most closely with the apparent intent of the lawmakers,

with a view to promoting rather than defeating the general

purpose of the statute.” [Citation.]’ [Citation.]” (1550 Laurel

Owner’s Assn., Inc. v. Appellate Division of Superior Court (2018)

28 Cal.App.5th 1146, 1152.)

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1.2. Statutory Vested Rights

The basis of the Developer’s claim to vested rights is found

in Government Code section 66498.1 which provides in

subdivision (b) (section 66498.1(b)): “When a local agency

approves or conditionally approves a vesting tentative map, that

approval shall confer a vested right to proceed with development

in substantial compliance with the ordinances, policies, and

standards described in Section 66474.2.[9] However, if Section

66474.2 is repealed, that approval shall confer a vested right to

proceed with development in substantial compliance with the

ordinances, policies, and standards in effect at the time the

vesting tentative map is approved or conditionally approved.”

Thus, “[a]pproval of the vesting tentative map entitles the

developer, subject to certain limitations, to proceed with the

9 Government Code section 66474.2 provides: “(a) Except as otherwise

provided in subdivision (b) or (c), in determining whether to approve or

disapprove an application for a tentative map, the local agency shall

apply only those ordinances, policies, and standards in effect at the

date the local agency has determined that the application is complete

pursuant to Section 65943 of the Government Code. [¶] (b) Subdivision

(a) shall not apply to a local agency which, before it has determined an

application for a tentative map to be complete pursuant to Section

65943, has done both of the following: [¶] (1) Initiated proceedings by

way of ordinance, resolution, or motion. [¶] (2) Published notice in the

manner prescribed in subdivision (a) of Section 65090 containing a

description sufficient to notify the public of the nature of the proposed

change in the applicable general or specific plans, or zoning or

subdivision ordinances. [¶] A local agency which has complied with

this subdivision may apply any ordinances, policies, or standards

enacted or instituted as a result of those proceedings which are in

effect on the date the local agency approves or disapproves the

tentative map.”

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project ‘in substantial compliance with the ordinances, policies,

and standards’ … in effect when the map application was deemed

complete.” (Kaufman & Broad Central Valley, Inc. v. City of

Modesto (1994) 25 Cal.App.4th 1577, 1586.)

It is undisputed that the Developer submitted an

application for a vesting tentative tract map to the City and that

the City notified the Developer in writing on June 23, 2016 that

the application was “deemed complete.” Applying the plain

meaning of the statute compels the conclusion that the

Developer’s right to proceed with the Project vested as to the City

on June 23, 2016, well before City residents passed Measure C in

March 2017.

We note that this application of the statute is consistent

with the Legislature’s stated intent, which is set forth in

Government Code section 66498.9: “By the enactment of this

article, the Legislature intends to accomplish all of the following

objectives:

“(a) To establish a procedure for the approval of tentative

maps that will provide certain statutorily vested rights to a

subdivider.

“(b) To ensure that local requirements governing the

development of a proposed subdivision are established in

accordance with Section 66498.1 when a local agency approves or

conditionally approves a vesting tentative map. The private

sector should be able to rely upon an approved vesting tentative

map prior to expending resources and incurring liabilities

without the risk of having the project frustrated by subsequent

action by the approving local agency, provided the time periods

established by this article have not elapsed.

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“(c) To ensure that local agencies have maximum

discretion, consistent with Section 66498.1, in the imposition of

conditions on any approvals occurring subsequent to the approval

or conditional approval of the vesting tentative map, so long as

that discretion is not exercised in a manner which precludes a

subdivider from proceeding with the proposed subdivision.”

Here, as noted, the City started to explore development in

the Waterfront area by at least 2010, selected the Developer as

its development partner in 2012, and entered into an exclusive

negotiating agreement and then a memorandum of

understanding with the Developer in 2013. The Developer

represents that during this period it expended more than

$14 million in Project-related costs. Finding that the Developer’s

rights against the City vested in mid-2016 after the City deemed

the application for a vesting tentative tract map to be complete—

and well after the Developer committed significant resources to

the Project—fulfills the Legislature’s stated desire to provide

stability for the private sector. In other words, at this point in the

Project, it was reasonable for the Developer to “be able to rely

upon an approved vesting tentative map prior to expending

[further] resources and incurring [additional] liabilities without

the risk of having the project frustrated by subsequent action by

the approving local agency[.]” (Gov. Code, § 66498.9, subd. (b).)

1.3. The Residents’ arguments are without merit.

The Residents do not contend that section 66498.1(b) is

ambiguous, or that the undisputed facts of this case compel a

finding against the Developer. Instead, the Residents suggest

that Government Code section 66498.6 and the Coastal Act

render section 66498.1(b) inapplicable whenever a development

includes an area of designated coastal zone. We disagree.

17

A brief discussion of the Coastal Act and the role of the

Coastal Commission is of assistance. “The Coastal Act ‘was

enacted by the Legislature as a comprehensive scheme to govern

land use planning for the entire coastal zone of California. The

Legislature found that “the California coastal zone is a distinct

and valuable natural resource of vital and enduring interest to all

the people”; that “the permanent protection of the state’s natural

and scenic resources is a paramount concern”; that “it is

necessary to protect the ecological balance of the coastal zone”

and that “existing developed uses, and future developments that

are carefully planned and developed consistent with the policies

of this division, are essential to the economic and social well-

being of the people of this state... .” ([Pub. Resources Code,]

§ 30001, subds. (a) and (d).)’ (Yost v. Thomas (1984) 36 Cal.3d

561, 565.) The Coastal Act is to be ‘liberally construed to

accomplish its purposes and objectives.’ (Pub. Resources Code,

§ 30009.) Under it, with exceptions not applicable here, any

person wishing to perform or undertake any development in the

coastal zone must obtain a coastal development permit ‘in

addition to obtaining any other permit required by law from any

local government or from any state, regional, or local agency. ...’

(Id., § 30600, subd. (a).)” (Pacific Palisades Bowl Mobile Estates,

LLC v. City of Los Angeles (2012) 55 Cal.4th 783, 793–794

(Pacific Palisades).)

As the Residents correctly explain, local agencies like the

City, which include within their boundaries areas lying in whole

or in part in the coastal zone, must develop a local coastal

program that implements the requirements of the Coastal Act at

the local level. The local coastal program includes a land use plan

and zoning ordinances implementing that plan, all of which must

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be consistent with the Coastal Act. (Pacific Palisades, supra, 55

Cal.4th at p. 794; Pub. Resources Code, §§ 30001.5, 30500–

30526.) Any development in the coastal zone must comply with

the local agency’s local coastal program and the Coastal Act.

(Pub. Resources Code, § 30600, subd. (a).)

At the state level, the Coastal Commission ensures that

local agencies comply with the Coastal Act in a variety of ways.

As pertinent here, the Coastal Commission must certify that a

local agency’s local coastal program complies with the Coastal Act

before it can take effect. (Pub. Resources Code, § 30500,

subd. (a).) Similarly, if a local agency attempts to amend its local

coastal program by, for example, modifying an implementing

zoning ordinance, the Coastal Commission must approve the

modification before it can take effect. (Id., § 30514, subd. (a).) The

Coastal Commission also has jurisdiction to review the actions of

a local agency to the extent it allows development in its coastal

zone. For example, if a local agency issues a coastal development

permit under its local coastal program, the Coastal Commission

may, if the permitting decision is appealed, independently review

the permit application to determine if it complies with the local

coastal program and is consistent with the Coastal Act.10 (Pub.

Resources Code, § 30600.5, subd. (d).)

The Residents contend the Coastal Act precludes all

statutory vested rights claims by a developer under section

66498.1(b), to the extent those claims relate to development in a

coastal zone. They offer two alternative theories about why this is

10The Coastal Commission will reject an appeal, however, if it

determines the appeal presents no substantial issue. (Pub. Resources

Code, § 30600.5, subd. (d).)

19

so. First, the Residents contend that the Coastal Act—and

specifically the provision for independent review of a local

agency’s land use decisions by the Coastal Commission—

displaces section 66498.1(b). In other words, they argue section

66498.1(b) does not apply to any development project including

areas of coastal zone because the local agency’s decision-making

is subject to review by the Coastal Commission. The Residents’

second argument (which is essentially a variant of their first

argument) relies on Government Code section 66498.6, which

states that a developer that obtains vested rights under section

66498.1(b) is not exempt from compliance with federal and state

law. Thus, they assert, where a development project implicates

the Coastal Act, the Act regulates the local agency’s actions

exclusively, rendering section 66498.1(b) inapplicable.

The foundation of both the Residents’ arguments rests on

an untenable interpretation of section 66498.1(b). The Residents

apparently assume that vested rights acquired under section

66498.1(b) would exempt a developer from compliance with any

and all conceivably applicable land use laws and regulations,

regardless of the source. They then argue that such a broad

exemption from land use regulation predicated merely on a local

agency’s approval of a vesting tentative map could not possibly be

the correct outcome.

Notably, the Developer does not advance this expansive

interpretation of section 66498.1(b). Instead, the Developer

argues only that a local agency cannot change its own ordinances

and policies after it approves a vesting tentative map and then

apply the new ordinances and policies to the previously approved

development project. Indeed, the Developer concedes it is subject

to the Coastal Act and the jurisdiction of the Coastal

20

Commission. As we will explain, this is precisely what section

66498.1(b) and related statutory provisions contemplate.

The essential defect in the Residents’ arguments is that it

conflates a local agency’s enforcement of local ordinances and

policies, which is subject to the vested rights provided under

section 66498.1(b), with a developer’s obligation to comply with

state and federal laws and policies, which is not. The statutory

scheme, however, clearly distinguishes between them.

As noted, section 66498.1(b) provides that a local agency’s

approval of a vesting tentative map confers on a developer a

vested right to proceed with the contemplated project in

accordance with then-existing local ordinances, standards, and

policies. It is evident that section 66498.1(b) relates only to local

ordinances, standards, and policies because, in the very next

subdivision, the statute permits a local agency to infringe on the

developer’s vested rights to the extent required under state or

federal law: “Notwithstanding subdivision (b), the local agency

may condition or deny a permit, approval, extension, or

entitlement if it determines … [t]he condition or denial is

required in order to comply with state or federal law.” (Gov. Code,

§ 66498.1, subd. (c)(2).) Should any doubt on this issue remain,

Government Code section 66498.6 directly addresses the

Residents’ concern: “The rights conferred by this chapter shall

relate only to the imposition by local agencies of conditions or

requirements created and imposed by local ordinances. Nothing

in this chapter removes, diminishes, or affects the obligation of

any subdivider to comply with the conditions and requirements of

any state or federal laws, regulations, or policies and does not

grant local agencies the option to disregard any state or federal

laws, regulations, or policies.” (Gov. Code, § 66498.6, subd. (b).)

21

Here, as noted, section 66498.1(b) conferred vested rights

on the Developer when the City deemed its application for a

vesting tentative tract map to be complete. The City is therefore

prohibited from applying subsequently amended local ordinances,

standards, and policies—such as the amended ordinances

contained in Measure C—to the Project. Indeed, the Legislature

intended section 66498.1(b) to apply in the precise circumstance

present here.

That is not to say, of course, that either the applicability of

the Coastal Act or the oversight provided by the Coastal

Commission is curtailed by the Developer’s vested rights.

California courts have consistently recognized the supremacy of

the Coastal Act over matters of local concern and the cases cited

by the Residents hold as much. Pacific Palisades, supra, 55

Cal.4th 783, upon which the Residents rely heavily, is the best

example. There, our Supreme Court emphasized that “ ‘[u]nder

the Coastal Act’s legislative scheme, ... the [local coastal program]

and the development permits issued by local agencies pursuant to

the Coastal Act are not solely a matter of local law, but embody

state policy.’ (Charles A. Pratt Construction Co., Inc. v. California

Coastal Com. (2008) 162 Cal.App.4th 1068, 1075 [(Pratt)].) ‘In

fact, a fundamental purpose of the Coastal Act is to ensure that

state policies prevail over the concerns of local government.’

(Ibid.)” (Pacific Palisades, supra, 55 Cal.4th at p. 794.)

But contrary to the Residents’ contention, the existence of

the Coastal Act and its provision for oversight of local land use

decisions in coastal zones do not invalidate section 66498.1(b)—

the statutes simply coexist. None of the cases cited by the

Residents holds otherwise, including Pratt, supra, 162

Cal.App.4th 1068, which the Residents describe as “on point.”

22

There, as here, the developer claimed to have acquired vested

rights under section 66498.1(b) regarding a development project.

(Pratt, at p. 1073.) The County approved a vesting tentative map

submitted by the developer and several parties appealed that

decision to the Coastal Commission. (Ibid.) The Coastal

Commission rejected the developer’s vested rights claim and, in

response to the developer’s petition for writ of administrative

mandamus, conceded that it did so based on state policies

enacted after the vesting tentative map was filed. (Id. at p. 1074.)

The developer appealed, citing section 66498.1(b). (Pratt, at

pp. 1074–1075.)

The Court of Appeal affirmed, noting that state laws and

policies are unaffected by section 66498.1(b). The court explained

that “[a]lthough local governments have the authority to issue

coastal development permits, that authority is delegated by the

Commission. The Commission has the ultimate authority to

ensure that coastal development conforms to the policies

embodied in the state’s Coastal Act.” (Pratt, supra, 162

Cal.App.4th at pp. 1075–1076.) Those state policies prevail over

local concerns in this arena. Accordingly, “[t]he Commission

applies state law and policies to determine whether the

development permit complies with the [local coastal program].

Under Government Code section 66498.6, subdivision (b), such

state law and policies are not subject to the vesting provisions of

Government Code section 66498.1, subdivision (b).” (Id. at

p. 1076.)

Importantly, Pratt does not stand for the proposition

advanced by the Residents here, namely that the Coastal Act

preempts section 66498.1(b) when a development includes an

area located in the coastal zone. Instead, Pratt clarified that

23

vested statutory rights flowing from a local agency’s approval of a

vesting tentative map bind the local agency—not the state. Here,

the only question presented for our review is whether the City’s

approval of the Map binds the City. As we have explained, it

does.

The court properly concluded the vested rights issue

was ripe for adjudication.

The Residents also argue the court erred in concluding the

Developer’s statutory vested rights claim was ripe for

adjudication. We disagree.

Whether a matter is ripe for adjudication is a question of

law subject to our independent review. (Communities for a Better

Environment v. State Energy Resources Conservation &

Development Com. (2017) 19 Cal.App.5th 725, 732 (Communities

for a Better Environment).) And whether a claim presents an

“actual controversy” in order to qualify for declaratory relief

pursuant to Code of Civil Procedure section 1060 is also a legal

matter we review de novo. (Communities for a Better

Environment, at p. 732) Once an actual controversy is found to

exist, however, it is within the trial court’s discretion to grant or

deny declaratory relief and we review that decision for an abuse

of discretion. (Environmental Defense Project of Sierra County v.

County of Sierra (2008) 158 Cal.App.4th 877, 885 (Environmental

Defense Project).)

“The ripeness requirement, a branch of the doctrine of

justiciability, prevents courts from issuing purely advisory

opinions.” (Pacific Legal Foundation v. California Coastal Com.

(1982) 33 Cal.3d 158, 170.) Generally speaking, a controversy is

ripe “ ‘when it has reached, but has not passed, the point that the

facts have sufficiently congealed to permit an intelligent and

24

useful decision to be made.’ ” (Id. at p. 171.) “In contrast, unripe

cases are those ‘ “in which parties seek a judicial declaration on a

question of law, though no actual dispute or controversy ever

existed between them requiring the declaration for its

determination.” ’ [Citation.]” (Communities for a Better

Environment, supra, 19 Cal.App.5th at p. 733.)

Ripeness is often an issue when a litigant seeks declaratory

relief pursuant to Code of Civil Procedure section 1060, as such

relief is permissible to resolve “a probable future controversy

relating to the legal rights and duties of the parties.”

(Environmental Defense Project, supra, 158 Cal.App.4th at

p. 885.) But an action for declaratory relief must still involve an

“actual controversy relating to the legal rights and duties” of the

parties to the litigation. (Code Civ. Proc., § 1060; see also Selby

Realty Co. v. City of Buenaventura (1973) 10 Cal.3d 110, 117

[under Code of Civil Procedure section 1060, an actual

controversy “is one which admits of definitive and conclusive

relief by judgment within the field of judicial administration, as

distinguished from an advisory opinion upon a particular or

hypothetical state of facts”].)

Here, it is plain that an actual controversy over the

Developer’s statutory vested rights exists. As the court found,

following the passage of Measure C, the City took the position

that the Agreement’s force majeure clause had been triggered

and that some of the City’s obligations under the Agreement

might be impacted by Measure C. In doing so, the City suggested

it believed the Project would be impacted by the amendments to

the local coastal program contained in Measure C, a result

necessarily in conflict with, and to the detriment of, the

Developer’s statutory vested rights under section 66498.1(b).

25

That circumstance virtually guaranteed a future controversy

relating to the legal rights and duties of the parties. And indeed,

substantial Project-related litigation has ensued.

The Residents offer two explanations why, in their view,

this case does not present a ripe controversy. First, they argue

that the Coastal Commission had not yet certified the

amendments to the local coastal program embodied in Measure C

and, therefore, the Developer had not yet exhausted its

administrative remedies. In addition, the Residents claim this

matter was not ripe because the Coastal Commission had not yet

determined whether it would apply Measure C when it reviewed

the City’s decision to issue a coastal development permit for the

Project. Both of these contentions miss the point.

The issue in the present case is not whether Measure C is

valid. And although our decision in this appeal may inform the

City and the Coastal Commission concerning the application of

Measure C to the Project in future proceedings, we do not decide

any specific issue regarding Measure C’s applicability or viability.

Instead, the narrow issue before us is whether, and when, the

Developer’s rights to proceed with the Project vested as against

the City. And as to that question, an actual controversy plainly

exits.

The court properly found that the Residents were not

entitled to recover litigation costs or attorney’s fees.

The Residents contend they are entitled to recover their

litigation costs and attorney’s fees because, in their view, they

prevailed on a majority of the issues presented in the motion for

judgment on the pleadings. We disagree.

26

3.1. Additional Facts

As discussed ante, the court resolved the ripeness issue and

the declaratory relief claim regarding statutory vested rights in

favor of the Developer. The court rejected the Developer’s

alternative arguments that Measure C was arbitrary, capricious,

and discriminatory under Arnel and that Measure C violated the

City Charter. After the court ruled in favor of the Developer on

its request for declaratory relief, the Developer dismissed its

remaining claims without prejudice. The court entered judgment

accordingly.

Following the entry of judgment, the Residents filed a

memorandum seeking costs of $2,022.52. The Developer filed a

motion to strike or tax costs arguing mainly that it, not the

Residents, was the prevailing party in the litigation under Code

of Civil Procedure section 1032. The Residents also filed an ex

parte application signaling their intent to request attorney’s fees

under Code of Civil Procedure section 1021.5, the private

attorney general fee statute. In addition, the Residents asked the

court to postpone litigation over costs and fees until after the

resolution of their appeal from the judgment.

The court denied the Residents’ ex parte application but

bifurcated the issue of which party or parties would qualify as the

“prevailing party” for purposes of a cost award or a “successful

party” for purposes of an attorney’s fee award. The court asked

all parties to brief that issue and set the matter for a hearing on

August 16, 2018, at the same time the Developer’s motion to

strike or tax costs was to be heard.

The Residents argued they were entitled to recover costs

and attorney’s fees because they “prevailed on a majority of the

principal disputed issues (two of three) the Court adjudicated on

27

the merits” and “vindicated the Redondo Beach electorate’s

constitutional right to vote on initiatives, and all Californians’

rights of access to water-oriented recreation under the [Coastal

Act], strengthened by Measure C.” The Residents noted that they

defeated two of the Developer’s claims, i.e., that Measure C was

invalid as a matter of law under Arnel and that Measure C

violated the City Charter. And although the Residents

acknowledged that the Developer prevailed on its statutory

vested rights claim, they asserted their “briefing of relevant

Coastal Act provisions and case law was instrumental in securing

express statements from this Court narrowing the judicial

declaration [the Developer] moved for under § 66498.1.”

The Developer argued it was the successful and prevailing

party in the litigation because it filed the petition after the

passage of Measure C in order to ensure that Measure C would

not be applied to the Project. The Developer succeeded by

obtaining a declaration from the court stating that its rights

against the City vested on June 23, 2016, prior to the passage of

Measure C, and that it could proceed with the Project under the

ordinances, policies, and standards in effect as of the vesting

date.

The court agreed with the Developer. As the court put it,

the Developer “sought to invalidate a law interfering with its

development rights. The legal ground by which this interference

was halted did not concern [the Developer], so long as its

development rights were protected. [The Developer] achieved a

declaration of this right.” As to the Residents, the court noted

“[t]heir primary goal in intervening was to defend Measure C and

stop [the] Project.” The Residents failed to achieve their desired

28

result. Accordingly, the court concluded the Residents were not

entitled to either costs or attorney’s fees.

3.2. The Residents are not entitled to recover

attorney’s fees under Code of Civil Procedure

section 1021.5.

Code of Civil Procedure section 1021.5 is a discretionary

fee-shifting provision. It provides, in pertinent part: “Upon

motion, a court may award attorneys’ fees to a successful party

against one or more opposing parties in any action which has

resulted in the enforcement of an important right 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.” “To the extent we construe and define the

statutory requirements for an award of attorney’s fees, our

review is de novo; to the extent we assess whether those

requirements were properly applied, our review is for an abuse of

discretion. [Citations.]” (La Mirada Avenue Neighborhood Assn.

of Hollywood v. City of Los Angeles (2018) 22 Cal.App.5th 1149,

1156; see also Vargas v. City of Salinas (2011) 200 Cal.App.4th

1331, 1339 (Vargas) [“ ‘[W]hether 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.’ ”].)

29

A party11 seeking an award of attorney’s fees under Code of

Civil Procedure section 1021.5 must establish that it is “a

successful party” within the meaning of the statute. (See, e.g.,

Ebbetts Pass Forest Watch v. Department of Forestry & Fire

Protection (2010) 187 Cal.App.4th 376, 381 (Ebbetts Pass) [“A

party seeking an award of section 1021.5 attorney fees must first

be ‘a successful party.’ ”]) “The term ‘successful party,’ as

ordinarily understood, means the party to litigation that achieves

its objectives.” (Graham v. DaimlerChrysler Corp. (2004) 34

Cal.4th 553, 571.) “ ‘In determining whether a plaintiff is a

successful party for purposes of section 1021.5, “[t]he critical fact

is the impact of the action, not the manner of its resolution.”

[Citation.] [¶] The trial court in its discretion “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 section 1021.5.

[Citation.]’ [Citation.]” (Id. at p. 566.) “ ‘ “The appropriate

benchmarks in determining which party prevailed are (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.” ’ [Citation.]” (Maria P.

v. Riles (1987) 43 Cal.3d 1281, 1291.)

As noted, the court determined that the Developer

unquestionably achieved its litigation aims. The Developer’s goal,

as reflected in the petition, was to obtain a ruling which would

permit it to proceed with the Project without being forced to

11Intervenors are vested with the same rights as original parties and

may seek attorney’s fees under Code of Civil Procedure section 1021.5.

(City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 87.)

30

comply with Measure C. To that end, the Developer asserted

several causes of action based on the theory that Measure C was

invalid per se. For example, the Developer claimed that Measure

C exceeds the power of the electorate, conflicts with the City

Charter, is unconstitutionally vague under the California

Constitution, and conflicts with the City’s general plan.

Alternatively, the Developer claimed the application of Measure

C to the Project, specifically, was unlawful. It urged, for example,

that Measure C violated its substantive due process rights by

interfering with its statutory vested rights. In addition to

attempting to invalidate Measure C generally, the Developer

sought to avoid its application. Specifically, the request for

declaratory relief sought to establish, among other things, that

Measure C could not be applied retroactively to the Project and

that the Developer’s rights had vested against the City on

June 23, 2016. Success on any one of the claims contained in the

petition would have achieved the Developer’s litigation goal. And

it did.

The resulting judgment also substantially changed the

landscape on a practical level. Prior to the litigation, there was

substantial disagreement as between the Developer, the City,

and the Residents about the potential applicability of Measure C

to the Project. And at the time the Developer initiated the

present suit, the City had advised the Developer that the Project

would be delayed due to Measure C’s passage. Now, as a result of

the Developer’s suit, there is no uncertainty on the issue:

Measure C cannot be applied to the Project. In short, a

comparison of the situation immediately prior to the suit and the

situation today compels the conclusion that the Developer is a

31

successful party within the meaning of the private attorney

general statute.

The Developer’s success notwithstanding, the Residents

argue that they qualify as a successful party under Code of Civil

Procedure section 1021.5. But unlike the Developer, the

Residents did not accomplish their primary objective. When the

Residents intervened in this lawsuit, they described their

litigation goals, focusing primarily on the Developer’s statutory

vested rights claim: “Should the Court grant the moving parties

leave to intervene, they will show that none of [Developer]’s

causes of action have legal merit. Regarding [Developer]’s claim

that [Measure C] interferes with vested development rights [the

Developer] contends it obtained last year, the moving parties will

show that those claims must fail because [coastal development

permits] from the Coastal Commission are a sine qua non for the

development [the Developer]’s project proposes at King Harbor;

and that lacking such discretionary permits, [the Developer] has

no vested development rights.” They also asserted, more

generally, that they sought to offer a “full and robust defense” of

Measure C against the Developer’s myriad attacks in order to

protect the interests of the voters who passed the initiative—

voters who presumably wanted to stop the Project. Declarations

of individual intervenors also disclose that by participating in

this litigation and defending Measure C against the Developer’s

attacks, the Residents sought to prevent the Project from moving

forward. The declaratory relief obtained by the Developer plainly

thwarts these stated goals.

Further, and as the court observed, the “before and after

the litigation” analysis also undermines the Residents’ claim of

success. Prior to the litigation, the Residents sought to apply

32

Measure C to the Project. Now, the Developer has secured a

judgment precluding the application of Measure C to the

Project—a result directly contrary to the express goal of the

Residents. The litigation substantially changed the legal

relationships among the parties by resolving the conflict over

Measure C.

Nevertheless, the Residents maintain that they are a

“successful party” entitled to seek attorney’s fees. It is true, as

the Residents note, that “[a] favorable final judgment is not

necessary; the critical fact is the impact of the action. (Graham v.

DaimlerChrysler Corp., supra, 34 Cal.4th at p. 565.) [Parties]

may be considered successful if they succeed on any significant

issue in the litigation that achieves some of the benefit they

sought in bringing suit. (Maria P. v. Riles[, supra,] 43 Cal.3d [at

p.] 1292.)” (Ebbetts Pass, supra, 187 Cal.App.4th at pp. 381–382.)

The Residents contend the court failed to apply these legal

principles when it noted that the Residents did not achieve their

primary litigation goal—stopping the Project from going forward.

Citing Sweetwater Union High School Dist. v. Julian Union

Elementary School Dist. (2019) 36 Cal.App.5th 970 (Sweetwater),

the Residents emphasize that in order to qualify as a “successful

party,” “ ‘a party need not prevail on every claim presented in an

action’ ” and may instead be a party that “succeeds on any

significant issue in litigation which achieves some of the benefit

the parties sought in bringing suit.” Although this principle is

well established, it is inapplicable here and, in any event,

Sweetwater is distinguishable.

In Sweetwater, the dispute concerned the unlawful

operation of charter school facilities by one school district (Julian)

within the geographical boundaries of a neighboring school

33

district (Sweetwater). Sweetwater filed a petition for writ of

mandate seeking to prohibit Julian and its business partner,

Diego Plus Education Corporation (Diego Valley), from operating

its facilities within Sweetwater’s boundaries. Sweetwater sought

a peremptory writ of mandate directing Julian to set aside Diego

Valley’s charter, to exercise oversight of Diego Valley as required

by law, to refrain from approving additional charter schools in

Sweetwater’s district, and to revoke Diego Valley’s charter and

prohibit it from operating charter schools in an unlawful manner.

(Sweetwater, supra, 36 Cal.App.5th at p. 982.) Sweetwater also

requested declaratory and injunctive relief prohibiting the

unlawful charter school operations. (Id. at pp. 982–983.)

Ultimately, the court did not order Julian to revoke the charter.

And although the court commented that Diego Valley’s operation

of two facilities within Sweetwater’s boundaries “ ‘would be in

violation of the Education Code’ ” and a recent court decision, the

court denied Sweetwater’s petition as to Diego Valley because

“ordering compliance with the law [would] be ‘superfluous.’ ’’ (Id.

at p. 983, italics omitted.) The court granted Sweetwater’s

request for injunctive relief, however, and prohibited Diego

Valley from operating the charter school facilities within

Sweetwater’s boundaries. (Id. at p. 984.)

The court awarded Sweetwater attorney’s fees under Code

of Civil Procedure section 1021.5. Julian and Diego Valley

appealed, arguing Sweetwater did not succeed on any of its

claims and the court’s order stating that Diego Valley’s

operations “would be” (rather than “was”) a violation of the

Education Code did not afford Sweetwater any clear form of

relief. (Sweetwater, supra, 36 Cal.App.5th at pp. 984–985.) The

Court of Appeal rejected this argument, noting mainly that

34

although Sweetwater did not obtain the majority of the relief it

requested, the court’s injunctive relief changed the legal

relationship of the parties to the benefit of Sweetwater.

Therefore, the court was within its discretion to find that

Sweetwater was the successful party in the litigation. (Id. at

p. 985.)

Relying on Sweetwater, the Residents urge that even

though the court found in favor of the Developer on its statutory

vested rights claim, they succeeded in the litigation by defeating

two of the Developer’s claims (the Arnel claim and the City

Charter claim), securing a dismissal of the Developer’s remaining

claims, and obtaining a ruling clarifying that the City must abide

by future Coastal Commission decisions.

We reject the Residents’ argument for several reasons.

Although the court had discretion to find that the Residents were

partially successful for purposes of a fee award under Code of

Civil Procedure section 1021.5, it was not required to do so. (E.g.,

Sweetwater, supra, 36 Cal.App.5th at p. 981 [“ ‘The pertinent

question is whether the grounds given by the court for its [grant]

of an award are consistent with the substantive law of section

1021.5 and, if so, whether their application to the facts of this

case is within the range of discretion conferred upon the trial

courts under section 1021.5, read in light of the purposes and

policy of the statute.’ ”].) Rather, as discussed ante, the court was

required to take a pragmatic approach in determining success

within the context of this litigation.

We see no abuse of discretion in the court’s conclusion that,

as a practical matter, the Residents failed to achieve any

significant benefit through their participation in the lawsuit. The

Residents’ success on two of the three legal challenges to Measure

35

C has no practical impact in the context of this litigation:

Measure C cannot be applied to the Project, notwithstanding the

court’s findings that Measure C is not arbitrary and

discriminatory under Arnel and does not violate the City Charter.

And unlike the situation in Sweetwater, where Sweetwater’s

partial success in the litigation effected a significant change in

the legal relationship of the parties, here the Residents’ success

on two of the Developer’s claims makes no difference in this

regard.

Moreover, that the Developer voluntarily dismissed its

remaining claims without prejudice—after it obtained the relief it

sought—cannot reasonably be considered a “success” for the

Residents within the meaning of the statute. Finally, the

Residents’ assertion that the judgment includes declaratory relief

in their favor because it acknowledges that the City must comply

with future Coastal Commission decisions is misplaced. The

Developer never claimed it would be exempt from future Coastal

Commission decisions and the primacy of the Coastal Act is well

settled, as we have said. And the fact that the court may have

accepted part of the Residents’ legal argument does not convert

their loss into success under Code of Civil Procedure section

1021.5. (See Vargas, supra, 200 Cal.App.4th at p. 1339 [noting

that the plaintiffs obtained no relief and the opposing parties

never changed their positions, and rejecting the plaintiffs’

argument that the court’s acceptance of part of their legal

analysis supported a fee award under the private attorney

general statute].)

36

3.3. The Residents are not prevailing parties entitled

to recover litigation costs under Code of Civil

Procedure section 1032.

Under Code of Civil Procedure section 1032, subdivision (b),

the “prevailing party” in litigation is entitled to recover costs as

set forth in Code of Civil Procedure section 1033.5. “ ‘Prevailing

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 … .” (Code Civ. Proc., § 1032, subd. (a)(4).)

As noted, the Residents filed a memorandum seeking to

recover litigation costs. They argue the court erred in striking

their cost memorandum and again assert that because they

defeated two of the Developer’s legal claims, the court should

have apportioned costs among the parties by assessing their

relative degrees of success. We reject this argument for two

reasons. First, the Residents failed to request this relief in their

opposition to the Developer’s motion to strike or tax costs.

Accordingly, they have forfeited the issue. (See In re S.B. (2004)

32 Cal.4th 1287, 1293 [noting “a reviewing court ordinarily will

not consider a challenge to a ruling if an objection could have

been but was not made in the trial court”].) Second, and in any

event, the court did not abuse its discretion in finding that the

Residents did not prevail in the litigation. As we have said, the

Developer sought and obtained a ruling prohibiting the

37

application of Measure C to the Project. It prevailed. That the

Residents successfully opposed the Developer’s alternative

theories for relief does not undermine that finding.12

12In light of our disposition, the Residents’ motion to strike the City’s

respondent’s brief filed October 29, 2019 is denied as moot.

38

DISPOSITION

The judgment and the August 16, 2018 order are affirmed.

Redondo Beach Waterfront, LLC shall recover its costs on appeal.

The City shall bear its own costs on appeal.

CERTIFIED FOR PARTIAL PUBLICATION

LAVIN, J.

WE CONCUR:

EDMON, P. J.

EGERTON, J.

39