City ordered to pay $45K in opponents’ attorney fees

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In two separate lawsuits, the city of Malibu was ordered to pay attorney fees. Both cases involved Local Coastal Program issues.

By Jonathan Friedman/Assistant Editor

A state Court of Appeal panel has presented the city of Malibu with a $45,000 bill.

In two separate cases earlier this month, the Second Appellate District upheld decisions by Los Angeles Superior Court Judge Allan J. Goodman that instructed the city to pay attorney’s fees to the organization Taxpayers for Livable Communities and to resident David Visher. Former TLC member Jay Liebig called the TLC issue an example of the city wasting money in a frivolous case. City Attorney Christi Hogin said the TLC case was necessary.

TLC had joined the California Coastal Commission in its case against the city over the Local Coastal Program. In 2002, the Coastal Commission had approved for Malibu an LCP, a set of two documents that establishes rules and regulations for development. Due to a petition signed by more than 2,500 Malibu voters, the city had attempted to put the documents up for a vote. But the Coastal Commission said the city could not legally put the documents on a ballot. The city lost that battle both at the trial and appellate court levels, with the saga concluding in late 2004 when the Supreme Court refused to hear the case.

For its part in the suit, TLC asked for the city to pay $25,000 for attorney fees, arguing that the organization had acted in the public interest. The city opposed the request because it said the purpose of awarding attorney fee payments to organizations that sue a city is to encourage organizations to conduct litigation for the public benefit. Since this particular lawsuit existed regardless of whether TLC intervened because the Coastal Commission had brought about the suit, the city argued TLC did not deserve the fee payments.

The trial court did not grant the full amount requested by TLC, but did order the city to pay $10,000. Although the Court of Appeal sided with the city’s argument that TLC contributed no arguments to the original case that were not contributed by the Coastal Commission, the court still upheld Judge Goodman’s decision because “TLC appears to have substantially contributed to the litigation.”

In a telephone interview on Monday, Liebig said the decision was further proof that the city’s original case was a frivolous matter.

“My view on the decision is that this is a vindication of our efforts in trying to direct the city in a way that was productive for the citizens of Malibu, rather than wasting our time deciding so-called constitutional issues,” Liebig said.

Hogin said the city was legally obligated to bring the original case to court because of the petition signatures it received from the residents. She added that the city needed to appeal the attorney fees decision because it was a case that could come up again.

“You don’t want to create a situation where groups join lawsuits against the city, and ‘cha-ching,’ they ask for attorney fees,” Hogin said. Had the city won the lawsuit, it could have created a precedent in the city’s favor for future cases involving similar issues. But a precedent was not created against the city’s favor, despite Malibu losing the case, because the appellate court decision was not officially published. An unpublished court decision means it does not start a legal precedent.

Hogin said the city spent nearly $10,000 to fight the trial court decision. Liebig said Hogin’s reasoning for why the city had to appeal the attorney fees decision was not good enough to merit the amount of money it cost.

“As a taxpayer in the city and a person who has an interest in the economic health of the city, I think it’s a very shallow argument,” he said.

TLC can now sue for attorney fees for the cost of the appellate trial. TLC attorneys were not immediately available for comment.

The Visher case is also associated with the LCP issue. While the city and the Coastal Commission were involved in litigation for more than two years, no coastal development permits were issued. This was because the Coastal Commission took the view that the LCP approved in 2002 was a final document and the city should have issued coastal permits based on it. In contrast, the city took the stance that the document needed to be voted on and that, in the meantime, the Coastal Commission should have issued coastal permits for Malibu.

In August 2003, Visher and his wife sued the city to force it to process their CDP application. Malibu tried to get the case dismissed. The trial court ruled that the case could not be dismissed and awarded Visher $35,000 in attorney fee payments, approving Visher’s argument that the city’s motion to dismiss the case was a delay tactic. The appellate court affirmed the argument. Visher cannot sue for further attorney fees because he represented himself in the appellate trial.

Visher’s original case has not yet been heard. But Hogin said it should be no longer relevant because CDP applications are now being processed and Visher has since sold his property. Visher did not return several calls for comment.