Redondo Beach Waterfront, LLC v. City of Redondo Beach ( 2020 )

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.
6
(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.
16
“(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
18
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