Andy's BP v. City of San Jose CA6

Filed 5/9/13 Andy’s BP v. City of San Jose CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

ANDY’S BP, INC., et al., No. H037173 (Santa Clara County Plaintiffs and Appellants, Super. Ct. No. CV176412)

v.

CITY OF SAN JOSE,

Defendant and Respondent;

AMIR SHIRAZI et al.,

Real Parties in Interest and Respondents.

Appellants Andy’s BP, Inc. and Andy Saberi challenge the trial court’s order denying them an award of attorney’s fees under Code of Civil Procedure section 1021.5.1 We find no error and affirm.

I. Factual and Procedural Background Respondent Amir Shirazi owns the gas station, Moe’s Stop, which is located at the corner of North 33rd Street and McKee Road in San Jose. The project underlying the present litigation involves the expansion of Moe’s Stop and consists of demolition of a

1 All further statutory references are to the Code of Civil Procedure.

2

house on the property, replacement of the house with three gasoline tanks, and construction of a canopy over the tanks. Respondent City of San Jose (City) approved a negative declaration for the project and upheld the planning commission’s approval of the conditional use permit for the project. Appellants own a gas station, Gas and Shop, on another corner of the same intersection. In July 2010, appellants filed a petition for writ of mandate against respondent City in which they sought invalidation of the City’s approval of the project and the preparation of an environmental impact report (EIR). Appellants argued that the City’s approval of the project failed to comply with the California Environmental Quality Act (CEQA) because the City ignored evidence that underground gasoline tanks on the project site had leaked and that the project would have a significant impact on traffic.2 In March 2011, the trial court granted the petition and issued a writ ordering the City: (1) to set aside its adoption of the negative declaration and approval of the conditional use permit for the project, and (2) to prepare an EIR. In May 2011, appellants filed a motion for an order awarding attorney’s fees under the private attorney general theory. Appellants attached declarations by their counsel James M. Dombroski and Thomas I. Saberi in which they set forth their experience and hourly rates. They also attached various court documents from the underlying litigation, including copies of the notice to the Attorney General that gave the Attorney General the opportunity to appear and prosecute the petition on behalf of the public and the Attorney General’s acknowledgment of receipt of the petition. In addition, appellants attached an itemization of various services rendered by Dombroski and Saberi. Appellants sought attorney’s fees of $83,120. Shirazi filed opposition to the motion. Relying on Conservatorship of Whitley (2010) 50 Cal.4th 1206 (Whitley), Shiraz argued that appellants failed to show: (1) the