I. INTRODUCTION

After 5 years of litigation in which Private Defendants upheld important rights of the public, Plaintiffs abruptly dismissed this case on the eve of trial.1/
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1/Throughout this brief Plaintiffs and Appellants are referred to as "Plaintiffs" and Respondents and Defendants Crystal Hills Property Owners Association, Lou Kershberg, Loyd Turner, Carol Turner, Tommy Turner, Benton Turner, Inc., a California Corporation, Ed Baca, and Bill Terrell are referred to as "Private Defendants".

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Private Defendants prevailed in a Code of Civil Procedure Section 1021.5 motion for recovery of their attorneys fees and expenses. Plaintiffs appealed that order.

II. STATEMENT OF FACTS

Plaintiffs are corporations engaged in the mining business. The Private Defendants are residents of Lucerne Valley, a property owners association and a private corporation owned by two of the named Private Defendants. (CT 2-3).

Plaintiff Sentinel Mining owns mining claims which it leases to Plaintiff Pluess-Staufer. Pluess-Staufer mines limestone from Sentinels' mining claims and hauls the ore to Pluess-Staufer's mill, using Crystal Creek Road. (CT 2-4)2/.

Crystal Creek Road runs south from the community of Lucerne Valley to the National Forest. (CT 315). The Road was developed sometime after 1917 (CT 1103) and was entered into the County maintained system in 1933. (CT 920). It is the only County maintained road which provides access to a large area South of Lucerne Valley. (CT 1334).

Since 1976, Plaintiff Pluess-Staufer has used Crystal Creek Road, under permits granted by the County3/ of San Bernardino (CT 679-905). The County waived permit fees in
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2/ All references to the Clerk's Transcript will be hereinafter "CT", the Reporter's Transcript will be "RT" the Stipulated Supplemental Clerk's Transcripts will be "Supp CT," and Appellants Brief will be "AB," each followed by the page(s) and line number(s), where necessary.

3/All references to County mean San Bernardino County.

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exchange for maintenance performed by Pluess-Staufer on Crystal Creek Road. (CT 917; 1085-1086). In 1985, Pluess-Staufer sought a Site Approval from the County for its mining claims and mill. As noted by Plaintiffs' counsel, several of the Private Defendants participated at the hearing before the County Board of Supervisors, (RT 10, May 17, 1991) expressing their concerns about the public safety and environmental impacts that would be caused by the approval of Pluess-Staufer's Site Approval Application. on November 13, 1985, the Board of Supervisors granted Pluess-Staufer's Site Approval. The Board, however, to address the concerns of Private Defendants and other members of the general public about the impact of the Site Approval, imposed sixteen conditions upon Plaintiff's Site Approval. (Supp CT 1712).

Of the sixteen conditions, eight dealt with Pluess-Staufer's use of Crystal Creek Road. The conditions required that, as Pluess-Staufer acquired right-of-way or real property south of its mill, it must realign Crystal Creek Road at its own expense so as to separate the realigned Crystal Creek Road from Pluess-Staufer's private haul road. Only upon constructing a new realigned Crystal Creek Road for public use would the original Crystal Creek Road become Plaintiffs' private haul road. (Supp CT 1710-1712).

The realigned Crystal Creek Road would be maintained by the County. Pluess-Staufer would maintain its private haul road. (Supp Ct 1712).

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On November 18, 1985, five days after the imposition of these conditions as part of the Site Approval, Plaintiffs filed this lawsuit naming only Private Defendants herein.

In their complaint, Plaintiffs sought to quiet title and obtain a prescriptive easement to Crystal Creek Road (CT 10-12) and claimed unlimited and unrestricted use of the underground water in the Crystal Hills Watershed for uses appurtenant to Plaintiffs' mining claims, notwithstanding the jurisdiction of the State of California over water. (CT 12-13). The complaint also sought over $1 million in damages alleging that each entry upon Crystal Creek Road and/or Plaintiffs' mining claims was a trespass. (CT 5-9).

On March 21, 1986, Private Defendants demurred to the complaint on various grounds, including that the County should have been joined as a party Defendant inasmuch as the roadway claimed by Plaintiffs was a County maintained road. (CT 22).

Private Defendants further demurred that the State of California must be joined as a party Defendant because Plaintiffs sought adjudication of the Crystal Hills Watershed, disputing the State's jurisdiction over that water issue. (CT 23, 25).

By stipulation, on January 14, 1987, Plaintiffs filed a First Amended Complaint which added the County as a Defendant but failed to add the State. (CT 3.1-48). The amended complaint again requested that Plaintiffs have quiet title and/or a prescriptive easement as to Crystal Creek Road and rights to unlimited water from the Crystal Hills Watershed for their mining operations.

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On March 12, 1987, Private Defendants filed another demurrer, again challenging the First Amended Complaint for its failure to name the State on the water rights cause of action. (CT 19-59). Private Defendants also took issue with the causes of action seeking quiet title and/or prescriptive easement against Crystal Creek Road on the grounds that a private party cannot acquire rights by prescription against a public road and that Crystal Creek Road was in the County-maintained system. (CT 19-59).

A hearing was held on June 10, 1987 at which the trial court sustained the demurrer in part, requiring that the State should be added as a party Defendant on the water rights cause of action. (RT 4, June 10, 1987).

As a result of these Private Defendants' demurrer, Plaintiffs chose to drop the water rights cause of action in their Second Amended Complaint, filed on August 14, 1987. (CT 60-85). Plaintiffs also amended their allegations concerning Crystal Creek Road to allege that they are owners of "primary rights" in Crystal Creek Road, that the County of San Bernardino has not taken or abrogated any of Plaintiffs rights in the Road and that public use is subject to Plaintiffs' prior rights (emphasis added). (CT 69). Plaintiffs expressly reserved the right to amend the complaint to assert a claim for quiet title and/or prescriptive easement in the future. (CT 1521-1522).

Private Defendants answered the Second Amended Complaint on July 22, 1988, affirmatively alleging that Crystal Creek

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Road was in the County-maintained road system and that Plaintiffs cannot claim title or interest therein, and that the trespass cause of action does not lie against Private Defendants for trespassing on Crystal Creek Road (CT 164-168) as Plaintiffs hold no right, title or interest therein.

Plaintiffs' Site Approval to allow development of its mining claims and mill was due to become null and void on September 13, 1988 (Supp CT 1710-1712) because all sixteen conditions had not been complied with within thirty six months of the date of original approval. (Supp CT 1710-1712). Plaintiffs made an Application for an Extension of Time dated July 28, 1988. (Supp CT 1714-1715). In that application, Pluess-Staufer stated that it had complied with all conditions except those relating to the realignment of a portion of Crystal Creek Road (Conditions 1, 2, 3, 4 and 15) and that resolution of that issue should await conclusion of the litigation. Pluess-Staufer claimed that this litigation limited its ability to respond to the requested conditions. (Supp CT 1713-1715). An extension for thirty six months was granted by the County. (Supp CT 1716-1717).

On February 2, 1989, Plaintiffs filed a Motion for Preliminary Injunction against Private Defendants. (CT 169-293). The Court denied Plaintiffs' request for the preliminary injunction (RT 14-25, July 27, 1989) but fashioned a mutual injunction which was filed on November 20, 1989. (CT 357-358).

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Three Motions for Summary Adjudication were made in 1990 by Plaintiffs and Defendants. (CT 359-1264; Supp CT 1640-1701). A significant part of the record in this appeal is devoted to those three Motions. All three Motions were denied on September 25, 1990. (CT 1265-1271).

On October 11, 1990, on the eve of trial, Plaintiffs dismissed the entire complaint in two separate Requests for Dismissal. (CT 1272-1273).

On December 20, 1990, the County Land Management Department sent a letter to Pluess-Staufer noting that the lawsuit had been settled, and requested that Pluess-Staufer submit within 30 days a report updating the County as to the status of Pluess-Staufer's completion of the conditions of its Site Approval. Pursuant to the conditions of the Site Approval, Pluess-Staufer was also required to submit regular quarterly reports to the County of its compliance with the conditions. (CT 1524).

On March 21, 1991, Private Defendants filed a Memorandum of Costs. (CT 1275-1277).

On April 9, 1991, Private Defendants filed a Motion Seeking Attorneys Fees under Code of Civil Procedure Section 1021.5. (CT 1278-1301; Supp CT 1702-1723). That Motion was heard and denied on May 17, 1991. (CT 1359-1362; RT 2-15 May 17, 1991).

On May 28, 1991, Private Defendants filed a Motion to Renew Motion for Order Granting Attorneys Fees pursuant to

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C.C.P. Section 1021.5. (CT 1323-1337; 1370-1371; 1379-1383; 1491-1530; Supp CT 1702-1884).

On June 7, 1991, the Private Defendants' Acknowledgement of Satisfaction of Costs in full was filed. (CT 1363-1365). On July 12, 1991, the trial court granted the Motion to Renew Motion for Order Granting Attorneys Fees to the Private Defendants. (CT 1531-1533; RT 16-25 July 12, 1991). The Order Awarding Attorneys Fees was filed on August 21, 1991.

Plaintiffs' appeal followed.



III. ARGUMENT


A. A TRIAL COURT RULING IS PRESUMED CORRECT


An appellate court presumes that the judgment or order appealed from was correctly decided by the trial court. Denham v. Superior Court 2 Cal.3d 557, 564, 86 Cal.Rptr. 65, 69 (1970) . It adopts all intendments and inferences to affirm the judgment unless the record expressly contradicts them. Unless the record affirmatively demonstrates error, the appellate court will presume that the evidence and findings support the judgment, Kompf v. Morrison 73 Cal.App.2d 284, 166 P2d 350 (1946), and that the trial court based its decision on appropriate findings and disregarded incorrect or insufficient ones. Brewer v. Simpson 53 Cal.2d 567, 583, 2 CR 609, 616) (1960).

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B. AN APPELLANT MUST PROVE REVERSIBLE ERROR


The presumption favoring the trial court decision places the burden of proving error on appellant. Marriage of Behrens 137 Cal.App.2d 562, 574, 187 Cal.Rptr. 200, 207 (1982).

C. A TRIAL COURT RULING CORRECT ON ANY BASIS WILL BE AFFIRMED


The appellate court is concerned with the correctness of the trial court's ruling, not with its reasoning. Bealmear v. Southern Cal. Edison Co. 22 Cal.2d 337, 139 P2d 20 (1943) . If the lower court decision was correct on any legal ground, it will be affirmed even if the reasons cited are wrong. West Pico Furniture Co. v. Superior Court 56 Cal.2d 407, 15 Cal.Rptr. 119 (1961).

D. THE APPELLATE COURT REVIEWS QUESTIONS OF LAW

The appellate court's primary function is to review questions of law. Tupman vs. Haberkern 208 C 256, 280 P. 970 (1929).

E. THE APPELLATE STANDARD OF REVIEW GOVERNS APPEALS

The term "appellate standard of review" refers to the degree of deference appellate courts grant a particular type of trial court ruling. Except for questions of law, the reviewing

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court will not reexamine an issue. Factual rulings and rulings committed to the trial court's discretion are reviewed more narrowly than questions of law. California Civil Appellate Practice 2d ed., California Cont. Ed. Bar, Section 4.13 at PP.71 (1985).

Three standards of review govern civil appeals. The three standards are: (1) Questions of law are reviewed de novo; the trial court determination of the issue is immaterial. Estate of Coate 98 Cal.App.3d 982, 986, 159 Cal.Rptr. 794, 795 (1979); (2) Sufficiency of the evidence is reviewed under the substantial evidence test; the lower court decision must be sustained if any substantial evidence supports the judgment. Ellison v. Ventura Port Dist. 80 Cal.App.3d 574, 581, 145 CR 665, 669 (1978); (3) A discretionary ruling is reviewed for abuse; unless prejudicial abuse can be demonstrated, the ruling must be sustained. Mission Imports, Inc., v. Superior Court 31 Cal.3d 921, 184 Cal.Rptr. 296 (1982).

F. THE TRIAL COURT HAD SUBJECT MATTER JURISDICTION TO

CONSIDER DEFENDANTS' MOTION TO RENEW NOTION

Plaintiffs raise a threshold jurisdictional issue by contending that the trial court lacked subject matter jurisdiction to consider Private Defendants' Motion to Renew Motion. (AB 26-27). In support, Plaintiffs cite Passavanti v. Williams, 225 Cal.App.3d 1602, 1606, 275 Cal.Rptr. 887 (1990). The issues considered by Passavanti differ from these in this

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case. In Passavanti, summary judgment was granted and judgment entered, after which a motion for reconsideration was filed and subsequently denied. More than 60 days after service of theconformed copy of the judgment, but within 30 days after the trial court denied the motion for reconsideration, plaintiff filed an appeal from the original judgment. Upon review, the court ruled that a post-judgment motion for reconsideration does not extend time to file a notice of appeal. However, because prior case law had implied that such a reconsideration motion extended the time to appeal, the court construed the motion for reconsideration to be a motion for a new trial, thus finding that the appeal was timely filed. Passavanti did not involve the jurisdiction of a trial court to reconsider a motion made pursuant to Section 1021.5 and has no bearing on this case.

Various courts have held that a request for attorneys fees under Section 1021.5 may be made after the judgment is final. A request for attorneys fees under Section 1021.5 is ancillary and collateral to a judgment. No Oil, Inc. vs. City of Los Angeles, 153 Cal.App.3d 998, 200 Cal.Rptr. 768 (App 2d Dist, 1984). The trial court has jurisdiction to award attorneys fees under Section 1021.5 after the judgment becomes final. Citizens Against Rent Control vs. City of Berkeley, 181 Cal.App.3d 213, 226 Cal.Rptr. 265 (App. 1 Dist, 1986); United Firefighters of Los Angeles vs. City of Los Angeles, 231 Cal.App.3d 1576, 283 Cal.Rptr. 8 (App 2d Dist, 1991).

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Plaintiffs' jurisdictional argument is therefore without merit.

G. RESPONDENTS WERE THE SUCCESSFUL PARTY AS REQUIRED BY

C.C.P. SECTION 1021.5

(1) The "Successful Party" Is The

"Prevailing Party".

Plaintiffs suggest that this is a case of first impression; that the definition of "a successful party" for purposes of Section 1021.5 in a voluntary dismissal context has never been established. (AB 10). Two appellate decisions, however, use the term "prevailing party" in relation to C.C.P. Section 1021.5. Residents Ad Hoc Stadium Com v. Board of Trustees 89 Cal.App.3d 274, 292, 152 Cal.Rptr. 585, 596 (1979) states:

The statutory right to attorney fees is
limited to the successful litigant ...
The provision for the recovery of
attorney fees by the prevailing party is
not susceptible to a constitutional
attack on equal protection grounds.
(emphasis added)

Sacramento v. Water Res. Control Bd., 2 CA 4th 960, 3 Cal.Rptr. 2d 643 (Cal.App. 3 Dist 1992) states:

Code of Civil Procedure Section 1021.5
permits the award of attorneys fees only
to a prevailing party (emphasis added).

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(2) Defendants Are "The Prevailing Party"
(Section 1032(a)(4).

Private Defendants are clearly the prevailing party as defined in C.C.P. Section 1032(a)(4) which states:

"Prevailing Party" includes the party
with a net monetary recovery, a defendant
in whose favor a dismissal is entered, a
defendant where neither plaintiff nor
defendant obtains any relief, and a
defendant as against those plaintiffs who
do not recover any relief against that
defendant. When any party recovers other
than monetary relief and in situations
other than as specified, the "prevailing
party" shall be as determined by the
court, and under those circumstances, the
court, in its discretion, may allow costs
or not and, if allowed may apportion
costs between the parties on the same or
adverse sides pursuant to rules adopted
under Section 1034. (Emphasis added)

In this case, a voluntary dismissal was filed in favor of Respondents, with prejudice as to the Damages, Conspiracy, Injunction Causes of Action (CT 1272) and without Prejudice on the Declaratory Relief Cause of Action. (CT 1273).

(3) Defendants Recovered Costs From Plaintiffs

As The "Prevailing Party."

Except as otherwise provided by Statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding Section 1032(b). As the prevailing party, Private Defendants claimed (CT 1275) and recovered costs from Plaintiffs.(CT 1363-1364).

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(4) The Trial Court Correctly Found

Defendants To Be The Successful Party.

As the preceding subsections clearly reveal, Private Defendants were the "Prevailing Party", which is one and the same with term "Successful Party" used in C.C.P. Section 1021.5. Consistent with this, the trial court made a specific finding that the Private Defendants were the "Successful Party" and that the Plaintiffs were the "Unsuccessful Party." (CT 1539).

Facts supporting that finding are:

(a) Plaintiffs were prevented from acquiring either quiet title or a prescriptive easement to Crystal Creek Road. See Plaintiffs' Request for Dismissal. (CT

1273).

(b) The enforcement of the Crystal Creek Road Conditions of Pluess-Staufer's Site Approval resumed after the litigation was terminated through Private Defendants' successful defense. See Declaration of Andrew J. Rush, Associate Planner, Planning Department of San Bernardino County and letter from Randy Scott, Senior Planner, Planning Department of San Bernardino County to Pluess Staufer dated December 20, 1990. (CT 1523, 1524).

(c) But for Private Defendants' defense of the case, Plaintiffs would have obtained quiet title and/or a prescriptive easement to Crystal Creek Road by default. See prayer to Plaintiffs' original complaint filed by Plaintiffs. (CT 13-14).

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(d) But for Private Defendants' demurrer, the County would not have been added as a Co-Defendant. See Demurrer filed by Private Defendants and Declaration of Charles Scolastico. (CT 20-30; Supp CT 1702-1703)

(e) But for Private Defendants' defense, the Plaintiffs would have acquired a declaratory judgment granting them unlimited use of water from the Crystal Hills Watershed, circumventing the State's jurisdiction. See prayer to Plaintiffs' original complaint filed by Plaintiffs. (CT 14).

These results obtained by Private Defendants led to the trial courts finding that Defendants were the successful parties and Plaintiffs were unsuccessful parties. (CT 1539).

(5) Civil Code Section 1717 is Irrelevant.

Civil Code Section 1717 is cited by Plaintiffs for the proposition that a voluntary dismissal does not result in a party being a prevailing party for purposes of being awarded attorneys fees pursuant to a contract. (AB 11).

As Plaintiffs concede, that statute applies specifically to contract cases. Plaintiffs have cited no authority to apply Civil Code Section 1717 to a C.C.P. Section 1021.5 motion, thus making the entire argument of Plaintiffs on this point irrelevant and inapplicable to the present case.

(6) There Are Valid Policy Considerations In

Favor of Upholding The Trial Court's

Determination.

Upholding the trial court's determination will

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encourage defendants to defend the public's interests.

The Courts have recognized that defendants enforcing established rights are as equally entitled as Plaintiffs to recover attorneys fees under C.C.P. Section 1021.5.

Not only a plaintiff, but a defendant, other
than a public entity, forced to litigate an
action regarding an important right affecting
a public interest, is entitled to such an
award when it is the 'successful party' and
meets the statutory criteria.

Woodland Hills Homeowners v. L.A. Com College, 218

Cal.App.3d 79, 96, 266 Cal.Rptr. 767, 776 (Cal.App.2 Dist. 1990).

An award of attorneys fees may properly discourage Plaintiffs such as this from initiating and pursuing "pointless litigation" against the public interest (as Appellants stated it). (AB 18).



H. THIS ACTION HAS RESULTED IN THE ENFORCEMENT OF AN
IMPORTANT RIGHT AFFECTING THE PUBLIC INTEREST


The trial court found that this action resulted in the enforcement of an important right affecting the public interest. (CT 1539). As stated by a California Appellate Court:

The trial court's determination of causation is
entitled to deference by the appellate court if
there is any reasonable basis in the record to
support the determination.

California Common Cause v. Duffy, 200 Cal.App.2d 730, 743, 246 Cal.Rptr. 285, 290 (Cal.App.4 Dist 1987).

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The Court had evidence that (1) the defense of the public's interests in Crystal Creek Road, (2) the public's interest in the enforcement of the conditions of the Site Approval, and (3) the defense of the State's interest in the Crystal Hills Watershed resulted in the enforcement of an important right affecting the public interest. (CT 13-14; 20-30; 1273; 1523-1524; 1539; Supp CT 1702-1703).

In spite of this, Plaintiffs urge that as nothing changed as a result of the litigation, attorneys fees are not justified. Plaintiffs' argument misses the point that Private Defendants successfully prevented changes sought by Plaintiffs that would have been detrimental to the public interest. (AB 15-16).

The enforcement of established rights, however, as well as the creation of new rights, can justify a fee award. Press vs. Lucky Stores, Inc., 34 Cal.3d 311, 193 Cal.Rptr.900, 667 P.2d 704 (1983).

Recognizing that the Private Defendants were defending the public's "established rights" rather than seeking to create new rights, the defense was a victory for the public.

For these reasons, the trial court, after considering the relevant evidence, (RT 25 July 12, 1991), determined that this action resulted in the enforcement of an important right affecting the public interest. (CT 1539).

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I. A SIGNIFICANT BENEFIT HAS BEEN CONFERRED ON THE

GENERAL PUBLIC AND ON A LARGE CLASS OF PERSONS IN SAN

BERNARDINO COUNTY THROUGH THE SUCCESSFUL DEFENSE OF THIS CASE

BY THESE DEFENDANTS

After considering only the relevant admissible evidence, (RT 25 July 12, 1991), the trial court made the finding that a significant benefit was conferred on the general public and on a large class of persons in San Bernardino County. (CT 1539).

That finding is supported by substantial evidence that the Private Defendants defended the public's interest in Crystal Creek Road, which was the catalyst for the renewed enforcement of conditions to Plaintiffs Site Approval, and the State's jurisdiction over the Crystal Creek Watershed. From the numerous declarations submitted to the trial court, it is clear that the general public and a large class of persons benefited from the defense of the road. (CT 1334-1334; 1370-1371; Supp CT 1724-1884). Future residents of Lucerne Valley may also benefit by the defense of this case.

C.C.P. Section 1021.5 attorneys fees have been granted in a variety of situations in which the public or a large class of persons is benefited. The protection of a scenic road, Starbird v. San Benito County, 122 Cal.App.3d 657, 176 Cal.Rptr. 149 (1981), the right of the public to a dedication of an easement along a riverbank, Kern River Pub. Access v.

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City of Bakersfield, 170 Cal.App.3d 1205, 217 Cal.Rptr. 125 (1985) (App 5 Dist), and environmental protection, Woodland Hills Residents Association v. City Council, 23 Cal.3d 917, 935-36, 154 Cal.Rptr. 503, 593 P.2d 200 (1979) have all justified the award of attorneys fees under Section 1021.5.

The trial court's finding is strongly supported by the evidence and the cited case law, and must be upheld.



J. PRIVATE DEFENDANTS' LENGTHY AND STRENUOUS DEFENSE

OF CRYSTAL CREEK ROAD WAS NECESSARY

Plaintiffs declare that Private Defendants' involvement was "not unique, but was superfluous" because the County was a party to the action. (AB 17).

Plaintiffs cite several cases, Crawford v. Board of Education, 200 Cal.App.3d 1397, 246 Cal.Rptr. 806 (1988); Committee to Defend Reproductive Rights v. A Free Pregnancy Center, 229 Cal.App.3d 633, 645, 280 Cal.Rptr. 329 (1991); and Californians for Responsible Toxic Management v. Kizer, 211 Cal.App.3d 961, 259 Cal.Rptr. 599 (1989), in an attempt to bolster this argument.

These cited cases, however, are totally inapplicable to this case, in that in each of those cases, the parties seeking attorneys fees were Plaintiffs who voluntarily involved themselves in cases in which the trial court determined that their actions were unnecessary. In contrast, here the Private Defendants were sued by Plaintiffs, which

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forced their involvement. As these Private Defendants were attacked as representatives of the general public, it is now the ultimate irony that the same Plaintiffs claim their defense was "superfluous."

The County's Counsel recognized Respondents' contribution to the defense of the case in a declaration which concluded that these Private Defendants conferred a substantial benefit upon the general public. (Supp CT 1702-1704).

The County's Counsel noted that the County was made a Co-Defendant only because of the demurrer of Private Defendants. (Supp CT 1702-1704). To deprive them of reimbursement of their attorneys fees and expenses would punish them for their diligence in bringing the County into the case as a Co-Defendant.

Although the Private Defendants and County were co-litigants through much of this case, that does not prevent the Court from granting Private Defendants attorneys fees. Committee, supra, 229 Cal.App.3d 633 at 641, 280 Cal.Rptr. 329 at 334 states:

Although we have been cited to no California
authority directly on point, federal cases
have held that private parties who cooperate
with governmental officials in litigation are
not barred, by reason of the latter's
participation therein, from recovering
attorneys fees.

The Court went on to declare that an attorney fee award is dependent upon an ultimate finding of the trial court that

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the co-litigating party rendered necessary and significant services of value to the public or to a large class of persons benefited by the results of the litigation.

The trial court made that ultimate finding in this case and it must be upheld. (CT 1539).

K. DEFENDANTS FINANCIAL BURDEN OF PRIVATE

ENFORCEMENT WAS DISPROPORTIONATE

The trial court found, after considering all the evidence, that the financial burden of private enforcement was such as to make the award of attorneys' fees appropriate. (CT 1539).

Private Defendants incurred attorneys fees and costs of $82,520.81 in defending this case over a period of almost five years. (CT 1540).

The evidence showed that Private Defendants claimed no interest in Crystal Creek Road for themselves. (CT 164-168). Private Defendants merely seek reimbursement from Plaintiffs for the legal fees and expenses they incurred in stopping the taking of the public's rights by Plaintiffs. Plaintiff Pluess-Staufer, by its own admission, had an annual gross income during 1988, during this litigation, of fifteen million dollars (CT 197). To a company of this size, their legal fees were a small business expense when compared to the significant public rights which they hoped to usurp. In

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contrast, Private Defendant's fees were an enormous price to pay for defending the public's rights.

The assertion of unsubstantiated tort allegations, which were dismissed with prejudice (CT 1272), having never been established, cannot defeat this Section C.C.P. 1021.5 claim. Finally, many of Plaintiffs' tort allegations were made against "unknown" Defendants. (CT 72-74).

During the course of litigation, the trial court denied Plaintiffs' preliminary injunction which was based upon these same tort allegations. (CT 294-358). In fact, certain of the tort allegations were for trespassing upon Crystal Creek Road. (CT 74-75). The value of Plaintiff's tort claims is best illustrated by the amount of consideration received by Plaintiffs for these claims, which was nothing.

As was done in San Luis Obisbo County v. Abalone Alliance, 178 Cal.App.3d 848, 223 Cal.Rptr. 846 (Cal.App.2 Dist. 1986), another case in which Defendants were charged with alleged torts including "trespass", the Private Defendants should be awarded attorneys fees.

L. THE AMOUNT OF ATTORNEYS FEES AWARDED WAS

JUSTIFIED

The trial court found that the sum of $82,520.81 incurred by Private Defendants was a reasonable sum to award the Private Defendants in this litigation, taking into account all of the evidence. (CT 1540).

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The Plaintiffs were provided with evidence of the hours spent and the work done by Private Defendants' counsel. (Supp CT 1705-1709; 1718-1722).

Although Private Defendants' counsel offered to provide itemized statements for all services rendered, (CT 1290), Plaintiffs did not request such statements, nor did Plaintiffs request specific findings on the amount of attorneys fees. As stated by a California Appellate Court:

The trial court has no sua sponte duty to make
specific factual findings explaining its
calculation of the fee award and the appellate
courts will infer all findings exist to
support the trials courts determination.
...
California courts have stated a disinclination
to review the amount of an award when specific
findings were not requested.

California Common Cause, supra, 200 Cal.App.3d 730 at 754-55, 246 Cal.Rptr. 285 at 298.

In addition, the Private Defendants request for attorneys fees is properly made after determination of the "touch stone" or "lode star" figure based on a careful compilation of the time spent and reasonable hourly compensation of each attorney. Serrano v. Priest, 20 Cal.3d 25, 141 Cal.Rptr. 315, 569 P 2d 1303 (1977).

The Private Defendants' attorney hours were presented to the trial court, together with a narrative concerning the efforts that went into the case. (Supp CT 1718-1723, 1705-1709).

The Private Defendants have not requested any "multiplier" although this case contained several novel

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issues of law, including public roads, the rights of miners, and water rights.

The Private Defendants also point out that it was Plaintiffs' change of theory midway through the case that increased the cost of the litigation. Plaintiffs' Motion for summary Adjudication changed Plaintiffs' theory markedly as to the origin of Crystal Creek Road. Plaintiffs previously alleged that they constructed Crystal Creek Road in 1959, see paragraphs 9 and 10, Plaintiffs' Second Amended Complaint.

(CT 63).

Contrast that with Plaintiffs' Motion for Summary Adjudication which claimed that Crystal Creek Road existed at least as early as 1896. (CT 371). Plaintiffs' further claimed that Crystal Creek Road was built by miners starting in the 1860's (CT 408) and that the Crystal Creek Trail existed since 1896. (CT 407).

Plaintiffs asserted that all land sold by the United States is subject to a Mining Access Roadway (CT 374), that Crystal Creek Road is a Mining Access Roadway (CT 371) in which these Plaintiffs claim ownership rights, and that Plaintiffs' have an easement on Crystal Creek Road pursuant to 43 USC §932. (CT 384). Plaintiffs also contended that these miners of the 1860's were Plaintiffs' predecessors-in-interest. (CT 382).

The entire record of the adjudication motions show that the Private Defendants did substantial research to rebut these issues. The research done by Private Defendants'

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counsel involved researching the entire history of Crystal Creek Road, locating and retaining several experts, including Roger Hathaway and Thomas Atchley, who did extensive research. That research showed that Crystal Creek Road developed in the period of approximately 1900 through 1933 and was not built by miners.

The research done by Private Defendants' counsel included locating aerial photographs of Crystal Creek Road, reviewing archival records at the San Bernardino County Museum, reviewing the files of the U.S. Forest Service in Fawnskin, interviewing numerous precipient witnesses, and reviewing literature on the history of mining and roads in the area in question. (Supp. CT 1705-1709).

The Private Defendants submit that their attorneys fees were very reasonable considering the duration, complexity and novelty of the issues in this case.

Apparently, Plaintiffs felt that the Private Defendants' arguments were compelling to the point that Plaintiffs dismissed rather than try their case.

The trial court acted within its discretion in its award of attorneys' fees in light of the evidence it considered.


X. THE COURT ACTED PROPERLY IN GRANTING THE MOTION TO

RENEW NOTION UNDER C.C.P. SECTION 1008

For all the reasons set forth in the motion to renew,

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the court acted properly in granting the motion. (CT 1323-1337; 1370-1371; 1379-1383; 1491-1530; Supp CT 1724-1884). The Trial Court was presented with substantial grounds to reconsider its prior ruling. These grounds included the Declaration of Deputy County Counsel Charles Scolastico who stated that the County was not named in the original complaint; the County was added as a Defendant only because of Private Defendants' demurrer; County was interested in Crystal Creek Road only to the extent it was a County maintained road; the interest of the general public in Crystal Creek Road were represented by the Private Defendants; and the Private Defendants had conferred a substantial benefit upon the general public in defending this case. (Supp CT 1702-1703).

The grounds also included the Declaration of Robert H. Ziprick (Supp CT 1705-1709) with attachments detailing the extensive work done by counsel in this case, the disclosure made by Plaintiffs' counsel that they had incurred $150,000.00 in legal fees by 1990 (Supp CT 1708); and documentation as to the hours expended by counsel, his associates and paralegals from the commencement of the case. (Supp CT 1718-1722).

Attached to Mr. Ziprick's declaration were exhibits documenting:

(a) The original Conditional Site Approval from the County to Pluess-Staufer (Supp CT 1710-1712);

(b) Pluess-Staufer's Application for Extension of Time, showing

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the connection between this litigation and Pluess-Staufer's delay in complying with the conditions (Supp CT 1714-1715); and the Granting of the Extension. (Supp Ct 1716-1717).

The trial court also considered new facts which evidenced that Crystal Creek Road is a significant public road which is the only County-maintained road serving a large area south of the Community of Lucerne Valley. Those facts were contained in the Declaration of Fred H. Contaoi, Assistant Director of The County Transportation Department. (CT 1334-1335).

Finally, new evidence was provided that showed that enforcement of the Crystal Creek Road conditions of Pluess-Staufer's Site Approval resumed with the successful resolution of the litigation. (CT 1337).

Although there were ample grounds for renewal under Section 1008, the Court could have considered the motion to renew, even assuming no new facts had been presented.

A trial court may in its discretion permit a renewal of the motion and reconsider its original ruling, even if the factual basis for the motion to renew or reconsider is the same as that supporting the original motion. Lopez v. Lopez, 91 Cal.App.3d 383, 153 Cal.Rptr. 912 (App. 1979); Landers v. Seaton, 233 Cal.App.3d 632, 284 Cal.Rptr. 804 (App 2 Dist 1991).

It is apparent that the trial Court was reluctant to deny Private Defendants' first motion (RT 14, May 17, 1991). Upon considering the motion to renew with all the relevant

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evidence, the Court determined the Motion was well taken (RT 16, July 12, 1991) and granted it.


N. ATTORNEYS FEES APPEAL

If this Court upholds the trial Court's decision, Private Defendants request that their attorneys fees, expenses and costs in this appeal also be awarded. Sebago v. City of Alameda, 211 Cal.App.3d 1372, 259 Cal.Rptr. 918 (App 1 Dist 1989).


IV. CONCLUSION

The Plaintiffs' Appeal frivolously challenges the factual findings of the trial court while attempting to disguise these attacks as questions of law. The record shows that the trial court's decision to grant Private Defendants' motion was based upon substantial evidence in accord with C.C.P. Section 1021.5. The Court of Appeal is respectfully urged to uphold the decision of the trial court and to remand this matter to trial court for an award of additional attorneys fees incurred in defending this appeal.

DATED: March 5, 1993


Respectfully submitted,

ZIPRICK, SCHILT & HEINRICH

By:
ROBERT H. ZIPRICK
Attorneys for Private
Defendants and Respondents
CRYSTAL HILLS PROPERTY OWNERS
ASSOCIATION, LOU KERSHBERG, LOYD
TURNER, CAROL TURNER, TOMMY
TURNER, BENTON TURNER, INC.,
a California Corporation,
ED BACA, AND BILL TERRELL

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PROOF OF SERVICE BY MAIL

I, the undersigned, declare that I am over the age of eighteen (18) years and am not a party to this action. My business address is 202 E. Airport Drive, Suite 120, San Bernardino, CA 92408.

On this date, I served the foregoing RESPONDENTS' BRIEF by placing a true copy in a sealed envelope addressed to each person whose name and address is given below and depositing the envelope in the United States Mail with postage fully prepaid.


See Attached Service List

Date of deposit: March 8, 1993

Place of deposit: San Bernardino, California.

I declare under penalty of perjury under the laws of the

State of California that the foregoing is true and correct.

Executed this 8th day of March, 1993, at San Bernardino, California.

TAMARA R. CATREN

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SERVICE LIST

The Supreme Court of California (5 copies served]
300 South Spring Street, 2nd Floor
Los Angeles, California 90013

Honorable Stephen H. Ashworth
San Bernardino County Superior Court
Department DD 2
14455 Civic Drive
Victorville, California 92392

Birgit Sale
MUSICK, PEELER & GARRETT
One Wilshire Boulevard
Suite 2200
Los Angeles, California 90017

County of San Bernardino
Alan K. Marks, County Counsel
Charles S. Scolastico, Deputy County Counsel
385 North Arrowhead Avenue
San Bernardino, California 92415-0140

Charles C. Graeber
In Association With
REYNOLDS & LAWSON
300 E. State Street, Suite 450
Redlands, California 92373

CRYSTAL HILLS PROPERTY OWNERS ASSOCIATION
LOU KERSHBERG
LOYD TURNER
CAROL TURNER
TOMMY TURNER
BENTON TURNER, INC., a California Corporation
ED BACA
BILL TERRELL

03791

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