Plata v. City of San Jose CA4/3

Filed 2/3/22 Plata v. City of San Jose CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

RAYMOND PLATA et al.,

Plaintiffs and Appellants, G060382

v. (Super. Ct. No. 2014-1-CV-258879)

CITY OF SAN JOSE, OPINION

Defendant and Respondent.

Appeal from a judgment of the Superior Court of Santa Clara County, Thomas E. Kuhnle, Judge. Affirmed. McManis Faulkner, James McManis, Matthew Schechter, Tyler Atkinson, Hilary Weddell for Plaintiffs and Appellants. Nora Frimann, City Attorney, Ardell Johnson, Assistant City Attorney, Kathryn Zoglin and Margo Laskowska, Deputy City Attorneys for Defendant and Respondent.

INTRODUCTION Appellants Raymond and Michelle Plata ask us to reverse an order in the trial court denying them attorney fees from the City of San Jose (the City) under the private attorney general statute, Code of Civil Procedure section 1021.5. This appeal is being heard in conjunction with separate cross-appeals they and the City have filed as to the underlying decision on the merits.1 The Platas wish to recover their fees not because they were successful at the time of judgment, but because they caused the City to institute changes to its Municipal Code and to its practices short of judgment. We find nothing in the record to overcome the trial court’s skepticism that the Platas were the driving force in any such changes, and we therefore affirm the denial of attorney fees. FACTS Background Facts In 2003, the City enacted San Jose Municipal Code section 4.80.630 (section 4.80.630), which placed parameters around the use of monies in the City’s water utility operating fund. The aim of section 4.80.630 was to both reduce customer rates and limit the amount of annual transfers which could be made from the City’s wholly-owned water utility, the San Jose Municipal Water System (Muni Water) to its general fund. The code provision also allowed for annual “in lieu” transfers as well as transfers to give the City a “reasonable rate of return.” The City phased out in lieu and rate of return transfers in 2009. Muni Water has used a tiered pricing structure for its customers since 1994. However, in the spring of 2015, with the issuance of our decision in Capistrano Taxpayers Assn., Inc. v. City of San Juan Capistrano (2015) 235 Cal.App.4th 1493 (Capistrano), the City began the process of evaluating and transitioning away from such