Anderson v. City of S.F.

ROB ANDERSON, Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent.

ROB ANDERSON, Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, Appellant.

A143974

A147800

A148454

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

December 30, 2020

ROB ANDERSON, Plaintiff and Appellant,

v.

CITY AND COUNTY OF SAN FRANCISCO, Defendant and Appellant.

BY THE COURT:

The opinion filed herein on December 30, 2020 is modified as follows:

1. On page 1, the caption is modified to read: as shown above.

2. On page 46, line 8, page 56, line 4, and page 56, line 7, the amount $450 is modified to $425.

3. On page 58, the first line under the heading "DISPOSITION" is modified to read as follows:

The orders of October 23, 2014, November 5, 2014, and December 24, 2015,

This modification effects a change in the judgment.

The petition for rehearing is denied.

Date: __________

/s/_________

Kline, P.J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(San Francisco County Super. Ct. No. CPF-05-505509)

In 1997, the City of San Francisco (City) adopted a Bicycle Plan. It was a complex, far-reaching plan to alter streets in San Francisco to accommodate residents who ride bicycles, and it went through a lengthy review under the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.). In the early 2000's, the City decided to upgrade the Plan, and in adopting the update, the City authorities determined that no further CEQA review was needed.

Appellant Rob Anderson, together with unincorporated associations Ninety-nine Percent and the Coalition for Adequate Review (when referred to collectively, petitioners), filed a petition for a writ of administrative mandate to overturn that decision. In November 2006, the superior court ordered issuance of the requested writ directing the City to comply with CEQA, which ruling resulted in years of further CEQA-related activity involving the Plan. Then, in 2010, the superior court overruled petitioners' objections and approved the upgraded Plan.

Anderson appealed, and in January 2013, we issued our opinion in that appeal, an 83-page opinion that spent the bulk of its discussion rejecting almost all of Anderson's numerous arguments. However, in the final few pages we held that the Board of Supervisors had erred in the process by which the environmental impact report (EIR) was certified, and we concluded our opinion with this disposition: "The 'Order Overruling Petitioners' Objections to Respondent City and County of San Francisco's Return to Writ of Mandate' is reversed, and the cause is remanded to the trial court with directions to modify the writ of mandate (or issue a new writ if necessary) requiring the San Francisco Board of Supervisors to comply with CEQA as stated in this opinion. The parties shall bear their respective costs of appeal." (Anderson v. City and County of San Francisco (Jan. 14, 2013, A129910) [nonpub. opn.].)

Following remand, petitioners and the City engaged in vigorous litigation, the upshot of which was ultimately adverse to petitioners. This has resulted in the three consolidated appeals before us here—the fourth, fifth, and sixth appeals filed by Anderson. These three appeals are from four orders that: (1) denied petitioners' motion for judgment; (2) granted the City's motion to strike $1,813 in claimed costs; (3) discharged a writ in favorof the City; and (4) awarded petitioners attorney fees in the amount of $153,346, a substantial reduction from the amount sought. This last order generated a cross-appeal by the City contending that petitioners were not entitled to any fees because they were not a successful party under Code of Civil Procedure section 1021.5.

We conclude that none of Anderson's three appeals has merit, and neither does the City's cross-appeal. We thus affirm all four orders.

BACKGROUND¹

The General Setting

In 1997, the City adopted a Bicycle Plan, described as "a comprehensive guide for efforts that will make San Francisco a more 'bicycle friendly' city." As one superior court judge described it years ago: "The Bicycle Plan originated in the City's Department of Parking and Traffic . . . as a complex, far-reaching plan to alter streets in San Francisco to accommodate San Francisco residents who ride bicycles. To achieve the Bicycle Plan's goal of increasing the number of city residents who ride bicycles, the Bicycle Plan mandates a number of actions, including: eliminating traffic lanes and street parking throughout the City to create bicycle lanes, requiring that cars, buses, and trucks 'share' lanes with bicyclists regardless of speed, allowing bicycles inside Muni and other public transit vehicles, eliminating parking in existing and newly constructed buildings, allowing bicycles in exclusive bus lanes, installing physical impediments to motorized traffic or 'traffic calming,' allowing bicycles on sidewalks, and closing streets to vehicles to createexclusive 'bicycle boulevards.' The Bicycle Plan also contemplated . . . requiring that CEQA review of any proposed project in the City must resolve any 'traffic impacts or conflicts of parking access' by giving 'full or partial priority for bicycles,' that any proposed Area Plan in the City must be 'consistent' with the Bicycle Plan, and that automatic amendments of the City's General Plan will roll in '[a]s changes to the network occur.' "

The Bicycle Plan was a conspicuous success, so much so that it was substantially amended in 2001; and in 2002, a mere five years after being adopted, the City started planning to upgrade and extend it. The City took the position that because the Bicycle Plan had already gone through CEQA review, the proposed upgrade was exempt from further environmental review because there was no possibility that it would have a significant effect on the environment. (Cal. Code Regs., tit. 14, §15061, subd. (b)(3).)

In July 2005, petitioners filed a petition (and shortly thereafter, an amended petition) for a writ of mandate to overturn that decision. Petitioners were represented by attorney Mary Miles, an attorney who had only recently been admitted to the Bar, in March 2004. Petitioners obtained a preliminary injunction, and after a hearing the superior court granted the petition and issued a peremptory writ of mandate, ordering the injunction to remain in effect "until the [City] has complied with CEQA." Final judgment was filed on June 18, 2007, with the injunction remaining in effect. In short, the court issued a peremptory writ of mandate ordering the City to set aside its legislation on the project and to conduct environmental review, with the court retaining jurisdiction until the City complied with CEQA.

Petitioners applied for costs and an award of attorney fees. In March 2008, the City and petitioners, represented by Ms. Miles and the recently associated Richard M. Pearl, negotiated a "Settlement Agreement andGeneral Release [of] Attorneys' Fees and Costs," whereby the City agreed to pay $406,278.55 as "all attorneys' fees and costs arising out of Ms. Miles' and Mr. Pearl's representation . . . up to and including January 31, 2008."

In May 2008, and again in February 2009, the superior court largely denied requests from the City to modify the injunction, but the City was given permission to modify one specified intersection and to add and enhance marking associated with existing bicycle lanes on specified streets.

In August 2009, and over petitioners' opposition, the City's Board of Supervisors certified a 2,052-page EIR. And in September, the City filed its return to the peremptory writ of mandate, claiming that by certifying the EIR it had complied with CEQA and the writ, to which petitioners filed objections. Again, the City asked the trial court to dissolve the injunction. The superior court rejected the City's argument that the injunction should, by reason of the certification alone, be dissolved. But in a carefully crafted, comprehensive order, the court modified the injunction for a third time, to permit work on certain specified features of the Bicycle Plan to proceed pending a final determination of the validity of the EIR. And because the parties were, in the words of the court, unable or unwilling to reach an agreement on a schedule to test the City's return to the writ of mandate expeditiously, the court established briefing deadlines and scheduled a hearing for June 2010.

In August 2010, the superior court filed its order overruling petitioners' objections to the return to the writ, from which Anderson filed his first appeal—No. A129910 (the primary appeal).

The Primary Appeal—No. A129910

Anderson's brief in the primary appeal contained four arguments that, with their numerous subparts, made no fewer than 25 specific arguments.On January 14, 2013, we filed an 83-page opinion (Anderson v. City and County of San Francisco, supra, A129910), rejecting most all of Anderson's arguments, an opinion that early on included the observation that "Anderson advances a number of contentions aimed at perceived instances of reversible error. The final contention in his opening brief challenges the integrity and validity of the entire process undertaken by the City in response to the trial court's writ of mandate, and should be considered at the outset. We thus begin with it, and with the preliminary observation that considerable portions of this opinion will be comprised of lengthy quotation, with minor nonsubstantive editorial changes, from the trial court's order. This is done for two reasons. The first is to underscore the deep and exhaustive nature of the effort expended by the court on this matter, specifically, the ...