BILL ANALYSIS                                                                                                                                                                                                    Ó





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular Session


          SB 1306 (Stone)
          Version: March 28, 2016
          Hearing Date: April 26, 2016
          Fiscal: No
          Urgency: No
          TH   


                                        SUBJECT
                                           
               Consumer Remedies: Attorney's Fees and Litigation Costs

                                      DESCRIPTION  

          Existing law, the California Environmental Quality Act (CEQA),  
          requires a public agency to prepare, or cause to be prepared,  
          and to certify the completion of, an environmental impact report  
          (EIR) on a project that it proposes to carry out or approve that  
          may have a significant effect on the environment.  Existing law  
          authorizes parties to bring an action or proceeding to attack,  
          review, set aside, void, or annul the acts or decisions of a  
          public agency on the grounds of noncompliance with CEQA, and  
          authorizes a court to award attorneys' fees to a successful  
          party in any action which has resulted in the enforcement of an  
          important right affecting the public interest.

          This bill provides that in litigation pertaining to CEQA that is  
          filed pursuant to the Consumer Legal Remedies Act (Civ. Code Sec  
          1750 et seq.), the court shall award court costs and attorney  
          fees to a prevailing party in the action.

                                      BACKGROUND  

          Enacted in 1970, the California Environmental Quality Act (CEQA)  
          requires state and local agencies (public agencies) to follow a  
          set protocol to disclose and evaluate the significant  
          environmental impacts of proposed projects and to adopt feasible  
          measures to mitigate those impacts.  CEQA itself applies to  
          "projects" undertaken or requiring approval by public agencies,  
          and, if more than one agency is involved, CEQA requires one of  








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          the agencies to be designated as the "lead agency."  The  
          environmental review process required by CEQA consists of:  (1)  
          determining if the activity is a project; (2) determining if the  
          project is exempt from CEQA; and (3) performing an initial study  
          to identify the environmental impacts and, depending on the  
          findings, preparing either a Negative Declaration (for projects  
          with no significant impacts), a Mitigated Negative Declaration  
          (for projects with significant impacts, but that are revised in  
          some form to avoid or mitigate those impacts), or an  
          Environmental Impact Report (for projects with significant  
          impacts).

          An Environmental Impact Report (EIR) must accurately describe  
          the proposed project, identify and analyze each significant  
          environmental impact expected to result from the proposed  
          project, identify mitigation measures to reduce those impacts to  
          the extent feasible, and evaluate a range of reasonable  
          alternatives to the proposed project.  Prior to approving any  
          project that has received environmental review, an agency must  
          make certain findings pertaining to the project's environmental  
          impact and any associated mitigation measures.  If mitigation  
          measures are required or incorporated into a project, the public  
          agency must adopt a reporting or monitoring program to ensure  
          compliance with those measures.

          To enforce the requirements of CEQA, a civil action may be  
          brought to attack, review, set aside, void or annul the acts or  
          decisions of a public agency for noncompliance with the act.   
          Like many other environmental laws, CEQA is enforced primarily  
          through private litigation, not through oversight by a  
          governmental agency.  Before a petitioner can file a lawsuit  
          alleging noncompliance with CEQA, he or she must first exhaust  
          administrative remedies, which generally requires the petitioner  
          to submit the alleged grounds of noncompliance to the public  
          agency before it makes a final decision on a project.   
          Typically, a CEQA petitioner must finance his or her own costs  
          during litigation, but existing law does authorize a reviewing  
          court to award attorney fees to a prevailing plaintiff.

          This bill seeks to alter CEQA's existing fee-shifting provisions  
          to a "loser pays" arrangement, requiring a court to award costs  
          and attorney fees to the prevailing party in an action.

                                CHANGES TO EXISTING LAW
           







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           Existing law  , the California Environmental Quality Act (CEQA),  
          requires a public agency to prepare, or cause to be prepared,  
          and to certify the completion of, an environmental impact report  
          (EIR) on a project that it proposes to carry out or approve that  
          may have a significant effect on the environment, or to adopt a  
          negative declaration if it finds that the project will not have  
          that effect.  (Pub. Resources Code Sec. 21100 et seq.)
          
           Existing law  provides that an action or proceeding to attack,  
          review, set aside, void, or annul the acts or decisions of a  
          public agency on the grounds of noncompliance with CEQA may be  
          commenced when, among other things, it is alleged that:
           a public agency is carrying out or has approved a project that  
            may have a significant effect on the environment without  
            having determined whether the project may have a significant  
            effect on the environment;
           a public agency has improperly determined whether a project  
            may have a significant effect on the environment;
           an environmental impact report prepared by, or caused to be  
            prepared by, a public agency does not comply with CEQA;
           a public agency has improperly determined that a project is  
            not subject to CEQA; or
           another act or omission of a public agency does not comply  
            with CEQA.  (Pub. Resources Code Sec. 21167.)

           Existing law  states that an action or proceeding to attack,  
          review, set aside, void, or annul the acts or decisions of a  
          public agency on the grounds of noncompliance with CEQA shall  
          not be brought unless the alleged grounds for noncompliance were  
          presented to the public agency orally or in writing by any  
          person during the public comment period provided by CEQA or  
          prior to the close of the public hearing on the project before  
          the issuance of the notice of determination.  (Pub. Resources  
          Code Sec. 21177(a).)

           Existing law  provides that upon motion, a court may award  
          attorney 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  







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          recovery, if any.  (Code Civ. Proc. Sec. 1021.5.)

           Existing law  states that, with respect to actions involving  
          public entities, the provision above applies to allowances  
          against, but not in favor of, public entities.  (Code Civ. Proc.  
          Sec. 1021.5.)

           Existing law  provides that, except as otherwise expressly  
          provided by statute, a prevailing party is entitled as a matter  
          of right to recover costs in any action or proceeding.  (Code  
          Civ. Proc. Sec. 1032.)

           This bill states that in litigation pertaining to the California  
          Environmental Quality Act (CEQA) that is filed pursuant to the  
          Consumer Legal Remedies Act (Civ. Code Sec 1750 et seq.), the  
          court shall award court costs and attorney's fees to a  
          prevailing party in the action.







                                        COMMENT
           
           1.Stated need for the bill  

          The author writes:

            Currently CEQA is abused by enabling frivolous lawsuits  
            against all kinds of companies and groups for a litany of  
            reasons.  A comprehensive report by the law firm Holland and  
            Knight found that, "Sixty-four percent of the petitioners  
            filing CEQA lawsuits are either individuals or local  
            associations that often have no prior track record of  
            environmental advocacy."  This is compounded by the fact that  
            existing law only allows for plaintiffs to recoup their legal  
            fees and expenses, meaning that even if defendants prevail on  
            the merits of their cases they have no way to seek restitution  
            other than a counter-suit.  There is also an extreme  
            implication with regard to the housing market. 

            As the Legislative Analyst Office notes in a March 2015  
            report, "CEQA's complicated procedural requirements give  







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            development opponents significant opportunities to continue  
            challenging housing projects after local governments have  
            approved them."

            SB 1306 will empower courts to award court costs and  
            attorney's fees to a prevailing party as opposed to just a  
            plaintiff in CEQA litigation.

           2.Public policy behind CEQA  

          When it passed CEQA in 1970, the Legislature declared that the  
          "maintenance of a quality environment for the people of this  
          state now and in the future is a matter of statewide concern."   
          (Pub. Resources Code Sec. 21000(a).)  CEQA's findings and  
          declarations expressly direct "all agencies of the state  
          government which regulate activities of private individuals,  
          corporations, and public agencies which are found to affect the  
          quality of the environment, [to] regulate such activities so  
          that major consideration is given to preventing environmental  
          damage."  (Pub. Resources Code Sec. 21000(g).)  CEQA's  
          environmental review process gives effect to the policy of  
          giving major consideration to preventing environmental damage by  
          forcing public agencies to critically examine the environmental  
          impacts of proposed projects before approving them.  The  
          California Supreme Court has recognized that CEQA's "purpose is  
          to inform the public and its responsible officials of the  
          environmental consequences of their decisions before they are  
          made," and in so doing "protects not only the environment but  
          also informed self-government."  (Citizens of Goleta Valley v.  
          Board of Supervisors (1990) 52 Cal.3d 553, 564 [citations  
          omitted].)  CEQA exists "not to generate paper, but to compel  
          government at all levels to make decisions with environmental  
          consequences in mind."  (Id. [citations omitted].)

          CEQA, like many other statutes in environmental law, is  
          primarily enforced through litigation brought by private  
          parties.  While the ultimate "duty of identifying and evaluating  
          potentially feasible project alternatives" and assessing the  
          environmental impact of a project "lies with the proponent and  
          the lead agency, not the public," (Citizens of Goleta Valley v.  
          Bd. of Supervisors, 52 Cal.3d at 568.) it is the public's power  
          to hold agencies accountable that gives CEQA's mandates their  
          true force.  By authorizing prevailing parties to shift the  
          costs of litigation to non-prevailing parties, this bill could  
          chill public participation in CEQA enforcement.  Parties with  







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          meritorious claims may be reluctant to challenge agency actions  
          out of a concern that they could be ordered to pay a sizeable  
          sum should they lose in court.  Raising this concern, Sierra  
          Club California, in opposition, states:

            We oppose SB 1306, which requires attorney's fees and court  
            costs to be paid to prevailing parties in a suit litigated  
            under the California Environmental Quality Act (CEQA).  This  
            will prevent citizens from being able to effectively enforce  
            the law, leading to potentially faulty Environmental Impact  
            Reports and insufficient mitigation.  Effective enforcement of  
            CEQA is contingent on the public's ability to enforce the law,  
            often through litigation.  These suits are done to protect the  
            public and the environment from any problems that may arise  
            during the process.   Enforcing environmental laws already  
            costs the public through their own attorneys and court fees.   
            Adding the risk of covering prevailing party costs would be  
            prohibitive and restrict access to the courts.

           3."American Rule" on attorney fees  

          Generally in the United States, the "American rule" is that  
          parties are to bear their own costs in civil litigation.  In  
          Alyeska Pipeline Co. v. Wilderness Society (1975) 421 U.S. 240,  
          the United States Supreme Court held that it was the province of  
          the legislative branch to craft exceptions to the "American  
          rule," and that courts were not free to shift such costs absent  
          express legislative authorization.  (Id. at 269-270.)  In 1977,  
          the Legislature enacted Code of Civil Procedure Section 1021.5,  
          which appeared to be "in significant measure ? an explicit  
          reaction to the United States Supreme Court's Alyeska decision."  
           (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23  
          Cal.3d 917, 934.)  

          Section 1021.5 provides courts with authority to award  
          attorney's fees in actions to enforce important rights in the  
          public interest that confer a significant benefit on a large  
          class of persons.  Specifically, Section 1021.5 was intended to  
          encourage litigation deemed to be in the public interest by  
          persons acting as a private attorney general.  This doctrine  
          rests on the recognition that privately initiated lawsuits are  
          often essential to the effectuation of public policies embodied  
          in constitutional or statutory provisions, and that without some  
          mechanism authorizing the award of attorney fees, private  
          actions to enforce such public policies would be financially  







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          impracticable.  As explained recently by the California Supreme  
          Court:

            [s]ection 1021.5 [addresses] the problem of affordability of  
            such lawsuits.  Because public interest litigation often  
            yields nonpecuniary and intangible or widely diffused  
            benefits, and because such litigation is often complex and  
            therefore expensive, litigants will be unable either to afford  
            to pay an attorney hourly fee or to entice an attorney to  
            accept the case with the prospect of contingency fees, thereby  
            often making public interest litigation as a practical matter  
            . . . infeasible."  (Conservatorship of Whitley (2010) 50  
            Cal.4th 1206, 1219 [internal citations and quotation marks  
            omitted].)

          The standard set by Section 1021.5 is rigorous and is  
          conditioned upon three requirements being met: (1) a significant  
          benefit is provided to the general public; (2) 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 (3) such fees should not in the  
          interest of justice be paid out of the recovery, if any.    
          Additionally, the statute specifically provides for an important  
          exception to this rule when the matter involves a public agency,  
          stating that "with respect to actions involving public entities,  
          this section applies to allowances against, but not in favor of,  
          public entities."  (Code Civ. Proc. Sec. 1021.5.)

          The types of suits that would be subject to fee shifting under  
          this bill would largely involve a private person or entity who  
          brings an unsuccessful suit against a public entity, which is  
          not one of the fee-shifting scenarios currently authorized by  
          Section 1021.5.  Allowing fee shifting by a public entity  
          against private individuals could undermine an individual's  
          ability to pursue judicial redress to enforce CEQA.  Fears of  
          having to pay a substantial sum in attorney fees may  
          disincentivize individuals from bringing meritorious claims  
          against public entities under CEQA, thereby undermining an  
          important check on the powers exercised by these entities.   
          Writing in opposition, the Center for Biological Diversity  
          states:

            [This] bill would threaten plaintiffs in certain California  
            Environmental Quality Act cases with liability for defendants'  
            attorneys' fees even when their actions are brought in good  







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            faith.  The bill's adoption thus could set a precedent that  
            improperly chills enforcement of California's premier  
            environmental protection statute. . . . Existing law protects  
            defendants by allowing them to recover fees in bad-faith  
            actions.  This properly discourages frivolous lawsuits, while  
            allowing good-faith actions enforcing important public rights  
            to proceed.  Courts also have well-established authority to  
            ensure that plaintiffs can recover attorneys' fees only if  
            their successful litigation truly confers a public benefit. .  
            . . This attempt to single out and chill CEQA litigation is  
            ill-advised and unnecessary.

           4.Payment of costs  

          Costs of litigation, in contrast to attorney fees, are generally  
          recoverable by the prevailing party in civil litigation as a  
          matter of right.  Code of Civil Procedure Section 1032 states  
          that, "except as otherwise expressly provided by statute, a  
          prevailing party is entitled as a matter of right to recover  
          costs in any action or proceeding."  Other provisions in the  
          Code of Civil Procedure, such as Section 1033.5, enumerate  
          specific items that may be recovered as costs as well as those  
          which cannot be claimed.  CEQA contains no provision expressly  
          barring a prevailing party from recovering their costs in an  
          action brought under the statute.  Consequently, existing law  
          already authorizes a prevailing party to recover his or her  
          costs under CEQA, rendering the cost shifting provision of this  
          bill unnecessary.

          5.Codification in the Consumer Legal Remedies Act  

          This bill provides that in litigation pertaining to CEQA that is  
          filed pursuant to the Consumer Legal Remedies Act (Civ. Code Sec  
          1750 et seq.), the court shall award court costs and attorney  
          fees to a prevailing party in the action.  The Consumer Legal  
          Remedies Act (CLRA) is a consumer protection statute intended  
          "to protect consumers against unfair and deceptive business  
          practices and to provide efficient and economical procedures to  
          secure such protection."  (Civ. Code Sec. 1760.)  Among other  
          things, it prohibits merchants from representing that goods have  
          "characteristics, ingredients, uses, benefits, or quantities  
          which they do not have," or representing that goods "are of a  
          particular standard, quality, or grade" when they are of  
          another.  (Civ. Code Sec. 1770.)  Consumers who are harmed by  
          unlawful practices specified in the CLRA have a right of action  







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          to recover damages and other remedies.

          Passed by the Legislature in 1970, the CLRA is intended to be  
          "liberally construed" by the courts and "applied to promote its  
          underlying purposes."  (Civ. Code Sec. 1760.)  However, even a  
          broad construction of the CLRA is unlikely to encompass CEQA  
          claims.  A litigant who wishes to challenge an agency's  
          compliance with CEQA may do so by bringing suit under that act,  
          which generally allows legal challenges alleging that:
           a public agency is carrying out or has approved a project that  
            may have a significant effect on the environment without  
            having determined whether the project may have a significant  
            effect on the environment;
           a public agency has improperly determined whether a project  
            may have a significant effect on the environment;
           an environmental impact report prepared by, or caused to be  
            prepared by, a public agency does not comply with CEQA;
           a public agency has improperly determined that a project is  
            not subject to CEQA; or
           another act or omission of a public agency does not comply  
            with CEQA.  (Pub. Resources Code Sec. 21167.)

          It is unclear how a CEQA lawsuit alleging agency noncompliance  
          as described above could be pled under the CLRA's unfair  
          competition and unfair or deceptive acts or practices provisions  
          concerning the sale or lease of goods or services to a consumer.  
           Should the Committee approve this bill, it may wish to consider  
          re-codifying its provisions within CEQA to give them proper  
          legal effect.
           1.Bill should be sent back to Senate Rules Committee for  
            consideration of request from Senate Environmental Quality  
            Committee  

          The Senate Environmental Quality Committee has indicated that  
          this bill may have an impact to policy areas within their  
          jurisdiction.  As a result, should the Committee approve the  
          bill, the motion should be to send the bill back to the Senate  
          Rules Committee for consideration of the re-referral request  
          from the Environmental Quality Committee.


           Support  :  California Chamber of Commerce

           Opposition  :  California League of Conservation Voters; Center  
          for Biological Diversity; Consumer Attorneys of California;  







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          Disability Rights California; Sierra Club California; State  
          Building and Construction Trades Council of California

                                        HISTORY
           
           Source  : Author

           Related Pending Legislation  :

          SB 122 (Jackson and Hill, 2015) would authorize lead agencies,  
          upon request of a project applicant, to concurrently prepare the  
          administrative record while going through the CEQA environmental  
          review process, rather than after the process has concluded, as  
          specified.  This bill would also improve the accessibility of  
          CEQA related documents by expanding the use of California's  
          online CEQA State Clearinghouse.  This bill is pending in the  
          Assembly Appropriations Committee.

          SB 1248 (Moorlach, 2016) would require plaintiffs or petitioners  
          in CEQA actions to disclose certain information about named  
          plaintiffs, including their names and cities and counties of  
          legal residence, as well as the identity of individuals or  
          entities that contribute in excess of $100 dollars toward a  
          plaintiff's costs in an action.  This bill would also require  
          plaintiffs to identify any pecuniary or business interest  
          related to the project or issues involved in the CEQA action of  
          any named plaintiff or person that contributes in excess of $100  
          to the costs of the action, as specified.  This bill is pending  
          in the Senate Environmental Quality Committee.

           Prior Legislation  :

          SB 1451 (Hill and Roth, 2014) would have expanded CEQA's  
          exhaustion requirements by, among other things, precluding an  
          individual from challenging a public agency's compliance with  
          the act if the alleged grounds of noncompliance were known or  
          could have been known with the exercise of reasonable diligence  
          during a public comment period, but the alleged grounds of  
               noncompliance were presented to the public agency at a time  
          other than during the public comment period.  This bill failed  
          passage in the Senate Judiciary Committee.

          SB 1456 (Simitian, Ch. 496, Stats. 2010) added the requirement  
          that an organization formed after the approval of a project may  
          bring an action or proceeding to attack, review, set aside,  







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          void, or annul the acts or decisions of a public agency on the  
          grounds of noncompliance with CEQA if a member of that  
          organization presented to the public agency orally or in writing  
          the alleged grounds for noncompliance during the public comment  
          period or prior to the close of the public hearing on the  
          project before the issuance of the notice of determination.

          SB 919 (Dills, Ch. 1131, Stats. 1993) enacted CEQA's exhaustion  
          requirement by prohibiting the bringing of an action or  
          proceeding under the act unless the alleged grounds for  
          noncompliance with the act were presented to the public agency,  
          and unless the person bringing the action or proceeding objected  
          during the public comment period, or prior to the close of the  
          public hearing on the project.

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