SIMS, Acting P. J., Concurring and Dissenting. I concur with the majority opinion to the extent it concludes the trial court abused its discretion in refusing to award fees, so that the matter should be remanded to the trial court. However, I respectfully dissent from the majority’s conclusion that the aesthetic interest of plaintiffs may serve to defeat an award of fees under Code of Civil Procedure section 1021.5.1
In my view, the aesthetic interest of plaintiffs should not preclude an award of fees for a variety of reasons, as follows:
First, the majority’s conclusion (that an aesthetic interest may suffice to defeat an award of fees) is at odds with the holding of the California Supreme Court in Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311 [193 Cal.Rptr. 900, 667 P.2d 704]. In Press, private citizens obtained an injunction prohibiting Lucky Stores from disallowing their efforts to gather signatures on an initiative petition in front of a shopping center. The trial court awarded the plaintiffs some $113 in attorneys fees under the private attorney general theory. Reversing that meager award, and remanding for a determination of fees, the Supreme Court said in pertinent part, “Plaintiffs’ action also fulfills section 1021.5’s mandate that ‘the necessity and financial burden of private enforcement [be] such as to make the award appropriate.’ This requirement focuses on the financial burdens and incentives involved in bringing the lawsuit. Since plaintiffs had no pecuniary interest in the outcome of the litigation, ‘the financial burden in this case [was] such that an attorney fee award [was] appropriate in order to assure the effectuation of an important public policy.’ (Woodland Hills [Residents Assn., Inc. v. City Council (1979)] 23 Cal.3d [917,] 942 [154 Cal.Rptr. 503, 593 P.2d 200].)” (Press v. Lucky Stores, Inc., supra, 34 Cal.3d at p. 321, fn. omitted, italics added.)
The aforementioned text from Presl was accompanied by footnote 11 which provides in full as follows: “That plaintiffs’ personal interests in the outcome of the oil profits initiative were sufficient to induce them to bring [524]this action is irrelevant. As the statute makes clear, subdivision (b) of section 1021.5 focuses not on plaintiffs’ abstract personal stake, but on the financial incentives and burdens related to bringing suit. Indeed, in the absence of some concrete personal interest in the issue being litigated, the putative plaintiff would lack standing to bring an action. (See 3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 93, pp. 1768-1770.)” (Press v. Lucky Stores, Inc., supra, 34 Cal.3d at p. 321, fn. 11, italics added.)
These passages leave no doubt that, where private citizens are bringing suit, the relevant criteria focus on the financial incentives and burdens related to bringing suit. Indeed, Press has been interpreted by the leading treatise on attorneys fees in California as reaching precisely this result:
“An award on the ‘private attorney general’ theory is appropriate when the cost of the claimant’s legal victory transcends his personal interest; that is, when the need to pursue the lawsuit placed a burden on the plaintiff ‘out of proportion to his individual stake in the matter.’ Woodland Hills Residents Ass’n v. City Council (Woodland Hills II)[, supra,] 23 C3d 917, 941 . . . (quoting County of Inyo v. City of Los Angeles (1978) 78 CA3d 82, 89, 144 CR 71).
“When the successful party has no pecuniary interest in the outcome of the litigation, this requirement is fulfilled. Press v. Lucky Stores, Inc., supra. Press was followed in Slayton v. Pomona Unified Sch. Dist. (1984) 161 CA3d 538, 552, 207 CR 705, 714, and Phipps v. Saddleback Valley Unified Sch. Dist. (1988) 204 CA3d 1110, 251 CR 720.
“If the party claiming fees has a pecuniary interest in the outcome of the lawsuit, the issue is whether the financial burden placed on the party is out of proportion to its personal stake in the lawsuit. In Baggett v. Gates (1982) 32 C3d 128,, 185 CR 232, a suit by two police officers challenging reassignment to a lower-paying position without a proper hearing under the Public Safety Officers’ Procedural Bill of Rights Act (Govt C §§ 300-3311), the court noted that, although the lawsuit enforced basic procedural rights, it might not have resulted in any pecuniary benefit to the plaintiffs; therefore, it held, the financial burden requirement was met. 32 C3d at 143. . . .
“The court in Henneberque v. City of Culver City (1985) 172 CA3d 837, 218 CR 704, followed Baggett, noting that ‘the financial burden of prosecuting this cáse through two writ proceedings and two appeals clearly is “out of proportion” to the economic benefit Henneberque now stands to gain.’ 172 CA3d at 847, 218 CR at 710. See also People ex rel Seal Beach Police Officers Ass’n v. City of Seal Beach (1984) 36 C3d 591, 602, 205 CR 974, [525801]. See also Schmid v. Lovette (1984) 154 CA3d 466, 479, 201 CR 424, 431 (simplicity of litigation does not eliminate burden).
“The private attorney general doctrine, however, was not intended to reward litigants motivated by their own pecuniary interests who only coincidentally protect the public interest. Flannery v. CHP (1998) 61 CA4th 629, 71 CR2d 632; Weeks v. Baker & McKenzie (1998) 63 CA4th 1128, 1170, 74 CR2d 510 (following Flannery)', Beach Colony II, Ltd. v. California Coastal Comm’n (1985) 166 CA3d 106, 114, 212 CR 485. Compare Beach Colony with Planned Parenthood, Inc. v. Aakhus (1993) 14 CA4th 162, 173, 17 CR2d 510, 516 (fees awardable even though plaintiff had sufficient business interest to bring suit because suit also brought to protect ‘mutual and inseparable’ interests of its patrons); Galante Vineyards v. Monterey Peninsula Water Mgmt. Dist. (1997) 60 CA4th 1109, 71 CR2d 1 (upholding fee award in CEQA action because, although four of six petitioners had financial interest, obtaining environmental impact report produced ‘no direct pecuniary benefit’ and any ‘future monetary advantage ... is speculative’).” (Pearl, Cal. Attorney Fee Awards (Cont.Ed.Bar 2d ed. 1999) § 4.34, pp. 4-32 to 4-33.)
In Feminist Women’s Health Center v. Blythe (1995) 32 Cal.App.4th 1641, 1667-1668 [39 Cal.Rptr.2d 189], this court followed Press and held that, in order to defeat an award of fees, a plaintiff’s personal stake in the litigation had to be financial.
In Williams v. San Francisco Bd. of Permit Appeals (1999) 74 Cal.App.4th 961 [88 Cal.Rptr.2d 565] (Williams), the only California case recognizing that a successful plaintiff’s attorneys fees may be defeated by his aesthetic interest in the litigation, the court purported to distinguish Press on several grounds, none of which is persuasive.
First, the Williams court asserted that, “. . . this issue was not in any way central to the holding of Press.” (Williams, supra, 74 Cal.App.4th at p. 970.) This is simply wrong. The Press court was explaining why the plaintiffs were entitled to an award of attorneys fees. An integral part of that explanation was that the action fulfilled section 1021.5’s mandate that the necessity and financial burden of private enforcement be such as to make the award appropriate. The court was explaining why that criterion of the statute was satisfied. The determination was essential to the Press court’s analysis, and Williams errs in concluding to the contrary.
Next, Williams argues that, “[I]t would appear from the opinion [in Press] that the point (i.e., the satisfaction by appellant of the third statutory factor) [526]was not even contested by the respondent there.” (Williams, supra, 74 Cal.App.4th at p. 970.) This allegation finds no support in the Press opinion. Moreover, it is contradicted by the context of footnote 11, which reaches out to determine whether the plaintiffs’ personal interests in the outcome of the initiative were sufficient to induce them to bring this action. Footnote 11 appears to constitute a refutation of a point urged by the respondent in Press. The suggestion in Williams that the point was not litigated is without support and erroneous.
Next, the Williams court argues that, “. . . Although the [Press] court does indeed use the terms ‘pecuniary interest’ and ‘financial incentives’ in the brief paragraph and footnote it devotes to the issue, it does not hold that such are the only type of personal interests that would disqualify a litigant from a fee award.” (Williams, supra, 74 Cal.App.4th at p. 970.) This conclusion by Williams simply emasculates what the Supreme Court said in Press. The Supreme Court could have avoided the use of “pecuniary interest” and “financial incentives” if it wanted to. It did not. The Williams court improperly reads the Press court’s plain references to “pecuniary interest” and “financial incentives” out of the opinion. In short, Williams is incorrectly decided on this point and we should not follow it.
This leaves the question of what to make of Court of Appeal decisions (other than Williams) that have assertedly recognized that a nonpecuniary interest may defeat a claim for fees under section 1021.5.
Two of these cases—County of Inyo v. City of Los Angeles, supra, 78 Cal.App.3d 82 and City of Hawaiian Gardens v. City of Long Beach (1998) 61 Cal.App.4th 1100 [72 Cal.Rptr.2d 134]—are logically taken together because they are both cases in which the plaintiff seeking fees was a public entity. In neither case did the court recognize that abstract aesthetic interests could suffice to defeat an award of fees. Thus, in County of Inyo, at issue was an environmental impact report that dealt essentially with the appropriation of the county’s groundwater to the City of Los Angeles. Similarly, in Hawaiian Gardens, at issue was the closure of a road with a gate that would have denied access to the city’s residents. These interests are not abstract aesthetic interests but are rather concrete interests affecting two of the most essential duties of government: water and transportation. Moreover, it cannot be overlooked that, implicit in these cases, is the reluctance of the courts to award fees by one public entity against another where the vindication of the public interest is at issue. These cases are not useful in adjudicating the current dispute because (a) they do not involve the assertion of an aesthetic interest and (b) they are cases in which a public entity is the plaintiff seeking fees.
[527]This leaves Christward Ministry v. County of San Diego (1993) 13 Cal.App.4th 31 [16 Cal.Rptr.2d 435]. There, Christward Ministry, a nonprofit corporation owning 640 acres of land, challenged the adequacy of an environmental impact report prepared by the County of San Diego in connection with a planned vertical and horizontal expansion of the county’s landfill. The expansion of the landfill would have seriously interfered with the ministry’s view from its property. In holding that Christward was not entitled to fees under section 1021.5 the Court of Appeal referred to Christ-ward’s interest as a “property interest” and did not discuss whether an abstract aesthetic interest was at issue in the denial of fees. This case simply does not address the issue with which we are dealing in the present case. “ ‘It is axiomatic that cases are not authority for propositions not considered.’ ” (In re Marriage of Cornejo (1996) 13 Cal.4th 381, 388 [53 Cal.Rptr.2d 81, 916 P.2d 476], quoting People v. Gilbert (1969) 1 Cal.3d 475, 482, fn. 7 [82 Cal.Rptr. 724, 462 P.2d 580].) Moreover, although the issue was not tendered, it is apparent that the expansion of the landfill to block Christward’s view from its own property would necessarily have a negative impact on Christward’s property value and therefore, if the issue were tendered, the case could be treated as one involving Christward’s economic interest in seeing the landfill stopped.
In sum, except for Williams, supra, 74 Cal.App.4th 961, which, in my view, is incorrectly decided, no California authority supports the view that nonpecuniary aesthetic interests are sufficient to block an award of attorneys fees otherwise appropriate under section 1021.5.
A second reason for disagreeing with the majority’s conclusion is that abstract aesthetic interests, which are unrelated to an effect on property values, are incapable of reasonably accurate valuation. It should be emphasized that this is not a case (like Christward Ministry) where aesthetic interests have a direct impact on property values and are thereby capable of being translated into pecuniary terms by expert real estate appraisers. Rather, this is a case where, as the majority points out, there is no direct pecuniary benefit to plaintiffs’ properties from the aesthetic interests that they assert in connection with the general plan at issue.
There is simply no way reasonably to place a pecuniary valuation on the sorts of abstract aesthetic interests that are at issue in this litigation. There is no available thermometer by which to take plaintiffs’ aesthetic temperature. To state, as does the majority, that evidence of an aesthetic interest must be “objective” does not add anything; “objective” evidence of an inherently abstract concept does not serve to transform that concept into concrete terms.
[528]This necessary vagueness will have two unfortunate consequences. First, the trial court in this case will be tempted to reason that, since plaintiffs have brought this litigation and have incurred attorneys fees, their aesthetic interests were sufficient to justify bringing the litigation. But that reasoning is faulty. As I have discussed above, until the very recent Williams case, decided long after plaintiffs obtained judgment in this case, there was no California authority holding that aesthetic interests could defeat an award of fees under section 1021.5. Thus, in this case, plaintiffs undoubtedly undertook this litigation with the reasonable expectation that, should they prevail, fees would be awarded to them. It would be unfair to hold them to a different assumption ex post facto.
A second troublesome consequence of the difficulty of evaluating abstract aesthetic interests is that it provides trial judges with no concrete or reviewable standard for evaluating fees. There will be a temptation to deny fees in cases where there is an aversion to public interest litigation in general or to environmental litigation in particular. This is not a salutary result.
A third reason why I disagree with the majority on this point is that recognition of aesthetic values as a criterion for denying an award of fees will have a chilling effect on the enforcement of laws designed to preserve California’s aesthetic quality. Most notably, recognition of purely aesthetic interests will profoundly discourage future plaintiffs from bringing suit for violations of California Environmental Quality Act. Perhaps it is well to state the obvious: fees under section 1021.5 are awarded only where the plaintiffs have made out a violation of law by a public entity. It is bad policy to discourage citizens from enforcing laws designed to protect California’s precious and irreplaceable aesthetic environment.
Fourth and finally, a rule allowing abstract aesthetic interests to defeat an award of fees opens the door to recognition of other abstract personal interests that could defeat an award of fees under section 1021.5. Everybody brings a lawsuit for a reason. If a plaintiff’s aesthetic interests are sufficient to defeat an award of fees, what about a plaintiff’s interest in good government or in the proper enforcement of the laws? At oral argument, real party in interest acknowledged that a plaintiff’s interest in good government could be sufficient to block an award of fees. The possibilities are endless. It is not hyperbole to say that, if abstract nonpecuniary interests are allowed to defeat awards of fees to private citizens, then the very evisceration of section 1021.5 is at hand.
[529]For these reasons, then, I respectfully dissent from the majority’s conclusion that plaintiffs’ aesthetic interests, which are not grounded in any pecuniary gain, are sufficient to defeat an award of fees on remand.
This statute is referred to hereafter simply as “section 1021.5.”