Procedural Posture

Appellant conservationists challenged a judgment and order from the Superior Court of Orange County and the Superior Court of San Diego County (California), which denied their petition for writ of mandate challenging respondent county’s approval of respondent developers’ residential real estate project. The developers’ postjudgment motion for attorney fees, based on a fee provision in a mitigation agreement, was granted.

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Overview

A previous challenge to the adequacy of the environmental impact report (EIR) resulted in the issuance of a writ ordering the county to prepare a supplemental EIR (SEIR) further considering water quality issues. The possibility that arroyo toads, an endangered species, might be present near the project site was addressed in the proceedings. Arroyo toads were later observed near the project site. The county approved the SEIR without recirculation. The court held that res judicata barred a water quality claim, which was based on the same primary right previously adjudicated. In accordance with Code Civ. Proc., § 1003, only the trial court’s final ruling as to the SEIR, not its comments or tentative ruling, was its order. Substantial evidence supported the county’s decision that recirculation was not required under Pub. Resources Code, §§ 21092.1 or 21166, because there was an abundant record of prior public participation on that issue. The trial court erred by awarding attorney fees pursuant to Civ. Code, § 1717, subd. (a), as costs authorized by contract under Code Civ. Proc., § 1033.5, subd. (a)(10)(A), because the mandate proceeding was not an action for breach of an agreement.