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Court of Appeal, First District, Division 2, California.

REDEVELOPMENT AGENCY OF the CITY OF SAN RAMON et al., Plaintiffs, Cross-defendants and Appellants, v. Rashad Odeh SGHAYER et al., Defendants, Cross-complainants and Appellants.

Nos. A056887, A057846.

Decided: July 20, 1993

George B. Speir, Arthur F. Coon, Walnut Creek, for defendants and appellants Sghayer et al. Henry C. Bunsow, James A. Isbester, San Francisco, for respondents Stringer et al. David W. Skinner, San Leandro, for plaintiff and respondent Redevelopment Agency of San Ramon. Anthony De Maria, Concord, for respondent Pacific Tel. & Tel. Co. James M. Berg, Verduin Timm, San Francisco, for respondent Crow Canyon Developers.

Appellants Rashad Odeh Sghayer, Joe A. Lawton, Rosa Maria Lawton and Lan Tran are owners of a 4.7 acre parcel of property located at 200 Lynn Crest Lane in San Ramon (the property).   In 1990 the Redevelopment Agency of the City of San Ramon (the Agency) instituted eminent domain proceedings against the property, which was subject to a zoning restriction that required building projects in the area be constructed on property at least 25 acres in size.   Appellants cross-complained against the Agency, other city entities and the developers, alleging the restriction was invalid, both facially and as applied to their property.   The trial court granted summary judgment in favor of respondents;  appellants now challenge that ruling and the award of attorney fees to respondent developers.   Crow Canyon Developers, Ltd. has filed a cross-appeal challenging the award of only $2,000 of the over $39,000 it requested for attorney fees.   We shall affirm the judgment.


On November 19, 1986, the San Ramon City Council adopted the Downtown Specific Plan (the downtown plan) for the development of the proposed downtown area of San Ramon (the City).   The plan zoned approximately 60 acres of the downtown area, including appellants' property, for multi-family residential use.   Approximately two acres of appellants' land is situated above 680 feet in elevation and was zoned as open space.   The plan also provided that all developments involve a minimum of 25 acres (the 25–acre restriction).   The downtown area was re-zoned to conform to the plan by April 1987.

In May 1987, the City adopted the San Ramon Redevelopment Project Area Plan, which covered appellants' property.   Notice of this plan was recorded against title in 1987.   The Agency designated a 52–acre portion of the downtown area to be the first area developed (the project area).   The Agency sent notices to all affected property owners, including the Hawns, appellants' predecessors-in-interest, informing them that their property did not conform to the downtown plan.

The Agency received only two development proposals for the project area.   At a public hearing held February 6, 1988, the Agency considered the proposals and voted in favor of the proposal submitted by Promontory Point Venture, a respondent herein.  (For convenience, Promontory Point Venture, its co-managing partner, Scott Stringer, FPI Real Estate Group, Promontory Point Associates and San Ramon Development Co., Ltd., will sometimes collectively be referred to as PPV.)   The Agency and PPV thereafter negotiated a Development and Disposition Agreement (DDA) pursuant to which PPV was to develop 33 acres of the original project area.   Section 1.09 of the DDA requires PPV to make diligent efforts to acquire the necessary land directly from the owners at a fair market price.

In June 1988, appellant purchased the property at auction for $875,000 plus a 10 percent broker fee.   On January 30, 1989, PPV made a written offer to purchase the property for $548,000;  appellants did not respond to the offer.   Thereafter, PPV referred acquisition of the property to the Agency, which offered to purchase the property for $615,000.   Unable to reach an agreement for the purchase of the property, on November 6, 1990, the Agency instituted eminent domain proceedings to obtain possession.

On February 6, 1991, appellants answered and filed a cross-complaint and petition for writ of mandamus against the Agency, the City, various city entities and the developers.   The cross-complaint alleged the Agency, the City and the developers had used the 25–acre restriction to artificially lower the property's value so it could be acquired at less than market value.   Specifically, appellants asserted (1) the restriction was facially invalid and invalid as applied in an attempt to reduce the value of the property prior to condemnation;  (2) the developers breached their contractual duty to appellants, asserted third party beneficiaries of the DDA;  and (3) the developers had interfered with appellants' expectations that they would be able to sell the property at a fair market value.

All respondents moved for summary judgment on the cross-complaint.   The motions were heard on December 9, 1991.   The court granted summary judgment in favor of respondents and specifically found that (1) the 25–acre provision was enacted before appellants purchased the property, and was not actionable;  (2) appellants' challenge was barred by the 120–day statute of limitations set forth in Government Code section 65009, subdivision (c);  (3) there was no evidence of a conspiracy to enact the 25–acre restriction to reduce the value of the property;  (4) PPV was not a proper party to the first and fifth causes of action (for declaratory and injunctive relief), since only the public entitles could enforce the restriction;  (5) appellants could not make a claim for interference with prospective economic advantage because they did not own the property at the time the zoning was enacted;  and (6) PPV owed no contractual duty to appellants because they were not third party beneficiaries of the DDA.   On March 2, 1992, the court awarded attorney fees to respondents PPV and their successor-in-interest, Crow Canyon Developers., Ltd. (CCD), under the attorney's fee provision of the DDA.

Appellants filed this timely appeal challenging the summary judgments and the court's determination that the attorney's fee provision entitled PPV and CCD to an award of attorney fees.1


I.Claims Against the City

Appellants first contend the trial court erred in concluding their challenge to the 25–acre restriction was barred by the 120–day statute of limitations set forth in Government Code section 65009, subdivision (c).2  That provision states, in pertinent part, that “no action or proceeding shall be maintained in any of the following cases by any person unless the action or proceeding is commenced and service is made on the legislative body within 120 days after the legislative body's decision:  ․ (2) To attack, review, set aside, void, or annul the decision of a legislative body to adopt or amend a zoning ordinance.”   In this case the zoning ordinance was adopted on April 14, 1987;  appellants' counterclaim was not filed until February 6, 1991, almost four years later.   Appellants nonetheless maintain the trial court erroneously determined their action was time-barred because (1) respondents failed to plead section 65009, and thus waived it;  (2) section 65009, subdivision (c) applies only to attacks on the enactment, not the application, of ordinances;  (3) the statute applies only to direct attacks, and not collateral attacks such as that involved here;  and (4) the statute cannot insulate from review the constitutionality of an ordinance.

 Appellants argue that although respondents generally raised the defense of the statute of limitations in their answers, they waived the 120–day period of limitations found in section 65009 because it was only belatedly mentioned in a memorandum filed by the City and Agency in support of the motion for summary judgment.   In support of their position appellants assert the statute of limitations is a “ ‘personal privilege’ which must be affirmatively invoked in the lower court by appropriate pleading, or is waived.”  (5 Witkin, Cal.Procedure (3d ed. 1985) Pleading, § 1039, p. 453, italics omitted.)

It is equally true, however, that when construing the language of a pleading, “its allegations must be liberally construed, with a view to substantial justice between the parties.”  (Code Civ.Proc., § 452.)   Based in part on this provision, the court in County of San Mateo v. Booth (1982) 135 Cal.App.3d 388, 399, 185 Cal.Rptr. 349, concluded the defendant had not waived the defense of the statute of limitations by citing an inapplicable statute in both his answer and his motion for summary judgment where the plaintiff had agreed to an amendment of the answer to include the correct provision, and was thus aware of the applicable statute.   The court reasoned, first, that under these circumstances the plaintiff could not have been prejudiced.   It also determined that the defense had not been waived because the proper statutory provision was “ ‘pleaded or presented to the trial court in some fashion.’ ”   (Italics original, quoting Estate of Horman (1971) 5 Cal.3d 62, 72, 95 Cal.Rptr. 433, 485 P.2d 785.)

In this case we are similarly persuaded that although respondents did not raise the section 65009 defense at the first opportunity, it was presented to the court “in some fashion,” and gave appellants adequate notice that this provision was relevant to a determination of this case.   There was no waiver of the limitations defense.

 Appellants further maintain that, by its express terms, section 65009 only limits “facial” challenges, and does not bar actions that question the application of a particular zoning ordinance.   We disagree.   In enacting section 65009 the Legislature clearly expressed its intent to “reduce delays and restraints upon expeditiously completing housing projects.”  (§ 65009, subd. (a)(1).)   We cannot accept appellants' interpretation of section 65009, which would allow them to challenge a zoning decision that was made years earlier and was in place at the time they purchased the property, since such an interpretation would completely undermine the explicit legislative intent to use a brief limitations period to promote certainty for local governments and property owners.  “ ‘[W]hen the Legislature has stated the purpose of its enactment in unmistakable terms, we must apply the enactment in accordance with the legislative direction․’ ”  (Garat v. City of Riverside (1991) 2 Cal.App.4th 259, 289, 3 Cal.Rptr.2d 504, quoting Milligan v. City of Laguna Beach (1983) 34 Cal.3d 829, 831, 196 Cal.Rptr. 38, 670 P.2d 1121.)   Thus, the statute bars not only appellants' direct attack on the zoning ordinance but also the “as applied” challenge.

 We also find unconvincing appellants' argument that they could not have mounted as an applied challenge until they actually received the offer from PPV and knew precisely how the zoning would affect the value of the property.   The available evidence (which included the already-depressed value of the property at the time of appellants' purchase) 3 and a basic understanding of real estate valuation leads inescapably to the conclusion that the zoning likely would decrease the value of the property.   Since that is exactly what occurred, appellants can hardly argue they could not anticipate how the zoning would affect the property.

“Comprehensive zoning is a legitimate subject for legislative consideration under the police power, and zoning ordinances which are reasonable in object and not arbitrary in operation constitute a valid exercise of that power.”   (City of La Mesa v. Tweed & Gambrell Mill (1956) 146 Cal.App.2d 762, 768, 304 P.2d 803.)  “ ‘Public entities are not bound to reimburse individuals for losses due to changes in zoning, for within the limits of the police power “some uncompensated hardships must be borne by individuals as the price of living in a modern enlightened and progressive community.”  [Citation omitted.]’ ”  (HFH, Ltd. v. Superior Court (1975) 15 Cal.3d 508, 516, 125 Cal.Rptr. 365, 542 P.2d 237, quoting Morse v. County of San Luis Obispo (1967) 247 Cal.App.2d 600, 602–603, 55 Cal.Rptr. 710.)  “The fact that the value of an individual's property may be depreciated as a result of legislation enacted under the police power is not cause for invalidation, if the purpose is proper and there ‘is no arbitrary and unreasonable application in the particular case.’ ”  (City of La Mesa, supra, 146 Cal.App.2d at p. 769, 304 P.2d 803, citations omitted.)

Although appellants tried to prove the zoning was applied unreasonably, the trial court found, and we agree, that they utterly failed to provide factual support for those allegations.   Rather, the record shows that long after the 120–day period of limitations had run appellants knowingly and voluntarily purchased property they knew was subject to the 25–acre restriction.4  On this record there is no reason the statute of limitation should be declared inapplicable to appellants' claims.

 We also reject appellants' claim that applying the statute of limitations would effectively insulate from review a potentially unconstitutional zoning restriction.   First, appellants have not cited a single case for the proposition that a statute of limitation that is otherwise proper may be rendered inapplicable simply because it limits the time within which constitutional challenges may be brought.   Further, the record clearly shows that at the time the ordinance was enacted all individuals who owned property affected by the zoning were informed of the action and were given an opportunity to challenge its validity.   This notice ensured the ordinance would be reviewed by those who presumably had the greatest interest in assessing its constitutionality.   Under these circumstances we can hardly assume the statute of limitations is being used improperly to insulate an unconstitutional zoning decision.

Based on the foregoing reasons, we conclude the court properly determined section 65009, subdivision (c) bars all claims against the City.


Claims Against PPV/Stringer and Crow Canyon Developers, Ltd.5

A. Allegedly Wrongful Acts by Developers

Appellants next argue the court improperly granted summary judgment in favor of Stringer and PPV despite the existence of a factual dispute concerning whether “Stringer and/or PPV acted jointly with, in place of, or exerted improper influence over the AGENCY in enacting or applying the 25–acre restriction.”   In support of this claim appellants cite (1) section 3.01 of the DDA, which gives the developers the right to approve appraisals prepared by an independent appraiser;  and (2) section 3.02 of the DDA, which provides that the Agency may not purchase any property or settle any eminent domain action for a sum more than 20 percent greater than the approved appraisal price.   These provisions are insufficient to raise any factual issue regarding the developers' purportedly improper actions.

 Although section 3.01 of the DDA gives PPV the right to approve appraisals the Agency uses to acquire property, this in no way suggests PPV ultimately controls the price the Agency may offer for property.   In fact, the Agency is statutorily required to offer the fair market value for any property it attempts to purchase.  (§ 7267.2, subd. (a).)  The apparent purpose of this provision is to prevent the Agency from securing property at an inflated price and then seeking reimbursement from PPV.   Significantly, PPV cannot force the Agency to adopt a different, lower appraisal:  if PPV refuses to approve the Agency's appraisal, the DDA simply terminates without fault on either side.   (DDA § 8.02(f).)   Section 3.02, which provides that the Agency cannot purchase property or settle an eminent domain action for more than 20 percent above the approved appraisal, also is designed to limit PPV's potential liability insofar as PPV is obligated to purchase property from the Agency for an amount equal to the Agency's acquisition costs.  (DDA § 4.02.)   When viewed from this perspective, it is clear these provisions of the DDA were not intended to, and do not, give PPV improper control over the price the Agency may pay for property.   We thus disagree with appellants' claim that these portions of the DDA raise factual questions concerning PPV and/or Stringer's involvement that precluded summary judgment.

Appellants also sought declaratory relief (to render void the 25–acre restriction) and injunctive relief (to restrain application of the restriction) against PPV/Stringer and CCD.   In light of our conclusion that the statute of limitations bars all challenges to the 25–acre restriction, these claims against the developers also must fail.

B. Interference with Prospective Economic Advantage

In their eighth cause of action appellants asserted that Stringer and PPV interfered with their right to receive the full fair market value for their property by (1) inducing the City to enact the 25–acre restriction;  (2) inducing the City to acquire the property for “a fraction of its fair market value;”  and (3) failing to negotiate in good faith for the purchase of the property.   The court granted summary judgment on this claim.   On appeal appellants complain that PPV made an unreasonably low offer for the property because Stringer failed to disclose to Jay Flatt, his co-managing partner in PPV, that one appraisal had valued the property at $927,642.   They further assert that PPV and Stringer “encouraged and initiated the confiscatory application of the 25–acre restriction” that denied them the value of the land.

 With regard to the first claim, the court properly determined that Stringer, a co-managing partner in PPV, could not be liable for interfering with appellants' expectation of receiving a fair offer from PPV.   In order to successfully maintain a claim for interference with prospective economic advantage appellants must show that Stringer knowingly disrupted an economic relationship between appellants and some third party.  (Youst v. Longo (1987) 43 Cal.3d 64, 71, fn. 6, 233 Cal.Rptr. 294, 729 P.2d 728.)   Because Stringer was a partner in PPV, there was no third party involved;  Stringer cannot be liable for allegedly interfering with a potential business deal between appellants and his own company.

 Appellants also have failed to provide any factual support for their claim that PPV and Stringer somehow encouraged the enactment or application of the restriction to lower the value of the property.   The undisputed evidence before the trial court showed that PPV and Stringer did not participate in any way in the adoption of the open space designation or the 25–acre restriction.6  Larry Kenning, a land use consultant who worked with the City to develop a plan for the downtown area, stated that the 25–acre restriction was conceived and formulated by the staff of his consulting firm.   Phil Wong, the planning service manager for the City, stated that the 25–acre restriction was used to avoid piecemeal development and was based on traffic, circulation and grading concerns.   In light of this record, the trial court properly granted summary judgment in favor of PPV and Stringer.

C. Contract Claims

In their ninth and tenth causes of action appellants set forth claims for breach of contract and breach of the implied covenant of good faith and fair dealing.   These claims were based on the assertion that appellants were intended third party beneficiaries under the DDA insofar as the DDA required Stringer and PPV to make diligent efforts to acquire the property for its fair market value.   The trial court specifically found appellants were not third party beneficiaries of this agreement, and thus granted summary judgment on these claims.   We agree with the trial court's assessment.

“For a third party to qualify as a beneficiary under a contract, the contracting parties must have intended to benefit that third party, and their intent must appear from the terms of the contract.”  (Ascherman v. General Reinsurance Corp. (1986) 183 Cal.App.3d 307, 311, 228 Cal.Rptr. 1.)   The intent to benefit that third party “must be evident from reading the contract as a whole [in] light of the circumstances under which it was entered.”   (Outdoor Services, Inc. v. Pabagold, Inc. (1986) 185 Cal.App.3d 676, 682, 230 Cal.Rptr. 73.)  “[A] person only remotely benefited, or a mere incidental beneficiary, cannot enforce [a contract].”  (1 Witkin, Summary of Cal.Law (8th ed. 1974) Contracts, § 657 at p. 596, italics omitted.)

 Appellants' claim is founded on section 1.09 of the DDA, which requires PPV to “commence good faith and diligent efforts to acquire for fair market value” the property to be developed in accordance with the downtown plan.   According to appellants, this provision was intended to secure to them (and, presumably, other affected property owners) the right to receive fair market value for their property.   We disagree.

The DDA was intended to set forth the rights and obligations of the Agency and PPV with respect to the proposed acquisition and development of land affected by the downtown plan.   It clearly was not intended to grant any benefit to, or create any rights in, the individuals whose land might be acquired for development.   In fact, recognizing that the development plan could be unsuccessful for any number of reasons, the parties included in the agreement a provision allowing either party to terminate the DDA based on events listed in section 8.02.   In light of this provision, it is unlikely the parties intended to create in the affected property owners an independent right to enforce the agreement that could survive the parties' mutual termination of the agreement.

With this understanding of the agreement it seems clear to us that section 1.09 was only included to insure that following execution of the agreement PPV promptly would begin efforts to acquire the land needed for the development.   While the DDA states that the land should be acquired for “fair market value,” this language was likely included to insure that PPV did not delay the project by offering owners less than their property was worth and thereby possibly trigger the Agency's duty to institute eminent domain proceedings.   In sum, we are not persuaded by appellants' argument that this provision was included for the benefit of the property owners, and thus made them third party beneficiaries of the DDA.   Based on this conclusion, the court properly granted summary judgment on the contract claims.


Attorney Fees/CCD Cross–AppealA. Entitlement to Fees

 After summary judgment was granted, PPV moved for $84,667.17 in attorney fees under the fee provision set forth in section 11.14 of the DDA;  CCD requested $39,855.   The court held a hearing on March 2, 1992, and awarded $10,000 to PPV and $2,000 to CCD.   Appellants now complain the fee awards were improper, since appellants were not signatories to the DDA.   CCD has filed a cross-appeal in which it challenges the court's decision to award only $2,000 of the nearly $40,000 requested.

Section 11.14 of the DDA states that “[i]n the event any legal action is commenced to interpret or enforce the terms of this Agreement or to collect damages as a result of any breach thereof, the party prevailing in any such action shall be entitled to recover against the party not prevailing all reasonable attorney's fees and costs incurred in such action.”   In awarding fees the trial court also relied on Civil Code section 1717, which provides, in pertinent part, that “[i]n any action on a contract where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs.”

The seminal case construing contractual attorney's fee provisions is Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 158 Cal.Rptr. 1, 599 P.2d 83, where the plaintiff brought an action against the shareholders and directors of three bankrupt corporations seeking to hold them liable, on an alter ego theory, for debts owed plaintiff by the corporation.   One count was based on two unpaid promissory notes that contained attorney fees provisions, but had not been signed by the defendants.   The court rejected the alter ego theory and granted the defendants attorney fees.   The plaintiff appealed.

The Supreme Court first observed that Civil Code section 1717 “was enacted to establish mutuality of remedy where contractual provision makes recovery of attorney's fees available to only one party․”  (Reynolds Metals Co. v. Alperson, supra, 25 Cal.3d at p. 128, 158 Cal.Rptr. 1, 599 P.2d 83.)   The court reasoned that the purposes of the statute require that a nonsignatory defendant must be able to recover fees where “a plaintiff would clearly be entitled to attorney's fees” if he prevailed in enforcing the contract against the defendant.  (Ibid.)

This case is somewhat different, since appellants are nonsignatory plaintiffs who sought, as third party beneficiaries, to enforce the contract against signatory defendants.  Jones v. Drain (1983) 149 Cal.App.3d 484, 196 Cal.Rptr. 827, presented a similar situation.   In Jones, the defendants entered into an exclusive listing contract with a real estate broker for the sale of their home.   The broker entered into an oral agreement with plaintiff, who agreed to act as a cooperative broker for the sale of the property.   After the defendants rejected an offer procured by the plaintiff, the plaintiff sued.   The trial court granted summary judgment in favor of defendants, but denied defendants' claim for attorney's fees.

On appeal, the court concluded that, based on Reynolds Metals, the critical issue was “whether or not the plaintiff ․ clearly would have been entitled to attorney's fees had it prevailed in enforcing the contract against the defendants․”  (149 Cal.App.3d at p. 487, 196 Cal.Rptr. 827.)   The court determined that because respondent would have been entitled to fees if it had prevailed, under Civil Code section 1717, appellants were entitled to an attorney's fee award.  (Id., at p. 490, 196 Cal.Rptr. 827.)

Appellants vigorously argue that Jones has been “discredited” and “soundly rejected” by this District.   That is incorrect.   Admittedly, Jones has been criticized for its suggestion that, under an equitable estoppel theory, a losing litigant should be precluded from disputing a fee award if he merely alleges a right to fees in the event he prevails.  (Leach v. Home Savings & Loan Assn. (1986) 185 Cal.App.3d 1295, 1306, 230 Cal.Rptr. 553;  Wilson's Heating & Air Conditioning v. Wells Fargo Bank (1988) 202 Cal.App.3d 1326, 1333, fn. 6, 249 Cal.Rptr. 553 [signatory defendant not always entitled to fees from nonsignatory plaintiff;  defendant must show it would have been liable for fees].)   However, the essence of Jones—which is directly derived from Reynolds Metals, supra,—remains untarnished.   Thus, Jones recognized that when a litigant seeks to enforce a fee provision against a nonsignatory, the central question is whether the party seeking fees would have been liable for attorney fees under Civil Code section 1717 had the opposing party prevailed.   Many courts have applied this analysis.  (Leach, supra, 185 Cal.App.3d at p. 1307, 230 Cal.Rptr. 553 [party seeking fees must show that opposing party “actually would have been entitled” [italics in original] to a fee award if he had prevailed];  Steve Schmidt & Co. v. Berry (1986) 183 Cal.App.3d 1299, 1316, 228 Cal.Rptr. 689 [quoting Reynolds Metals];  Alhambra Redevelopment Agency v. Transamerica Financial Services (1989) 212 Cal.App.3d 1370, 1381, 261 Cal.Rptr. 248.)   The trial court expressly recognized this as the pivotal issue.

In this case, if appellants had prevailed as third party beneficiaries they would be entitled to attorney fees by operation of the contract.   (Wilson's Heating, supra, 202 Cal.App.3d at p. 1333, 249 Cal.Rptr. 553.)   The court thus correctly found that PPV and CCD were entitled to fees under the DDA and Civil Code section 1717.

B. Cross–Appeal by CCD

 CCD has filed a cross-appeal in which it asserts the court improperly awarded only $2,000 of the $39,000 it sought for attorney fees.   It asserts that the “paltry” award of fees was “tantamount to a complete denial, and is simply not supported by the evidence.”   In particular, CCD maintains the court improperly reduced its fee award to avoid awarding fees that related only to the non-contract claims, for which fees were not available.   CCD argues that because the time spent on the non-contract claims could not be separated from time spent on the contract claims, it was entitled to recover all fees reasonably incurred.  (IMO Development Corp. v. Dow Corning Corp. (1982) 135 Cal.App.3d 451, 465, 185 Cal.Rptr. 341 [where issues cannot be separated court may not attempt to do so for attorneys fee award].)   Under the circumstances presented here, we disagree.

First, we are unpersuaded by CCD's claim that the work relating to the contract claims was inextricably linked to the tort claims.   In fact, our analysis of the contractual issues on appeal convinced us that although the claims were founded on the same set of facts, in terms of legal analysis, they were quite independent.   Further, while the court expressed concern over the need to apportion the time between fees that were properly compensable and those that were not, that was clearly not the only basis for the reduction of the requested fee award.   The evidence before the court cast doubt on the necessity of much of the work performed by the CCD attorneys.   In a declaration filed in opposition to CCD's attorney fee motion appellants' attorney declared that CCD's potential liability (which was wholly based on PPV's liability) did not warrant an aggressive independent defense when PPV was already defending virtually identical interests;  that CCD nevertheless filed a demurrer without complying with local rules and then later agreed to withdraw the demurrer;  that CCD was ultimately granted a summary judgment just months after it was added as a named defendant;  that over 40 hours were claimed for preparation of a summary judgment brief that largely duplicated PPV's efforts;  and that fees were sought to review that effect of this judgment on other cases.   This evidence provides ample reason for the court to reduce the requested fees even without reference to the apportionment problem.

“It is well established that the determination of what constitutes reasonable attorney fees is committed to the discretion of the trial court, whose decision cannot be reversed in the absence of an abuse of discretion․  The trial court makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.”  (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623–624, 134 Cal.Rptr. 602, citations omitted.)   The court did not abuse its discretion in awarding CCD only $2,000 of the total requested.


The judgment is affirmed.


1.   Appellants are not challenging the apportionment of the fees, should an award be found proper.   PPV originally appealed the amount of the attorney fees award, but later dismissed that appeal.

2.   All further statutory references are to the Government Code unless otherwise specified.

3.   Appellants stated the property was worth in excess of $1.6 million between 1984 and 1986, yet they purchased it at a foreclosure sale—after the zoning restriction was enacted—for $875,000.   While these facts alone should have alerted appellants that the property value had decreased due to the restrictive zoning, appellant Sghayer stated in his deposition that he nonetheless believed the property was worth $2 million and expected the offer from PPV to be in that range.

4.   Although appellants refuse to admit they purchased with knowledge of the restriction, in light of the evidence presented there is virtually no way they convincingly can dispute this fact.   First, the zoning restriction was recorded against title years before their purchase.   Further, appellant Sghayer admitted he visited the site before purchasing the property and the listing agent testified at deposition that a 2– 1/212 foot by 3 foot sign was posted on the property indicating the land was part of the City's redevelopment project and that PPV was the developer for the project.   Finally, Sghayer's signature appears on a disclosure form that specifically states the property is to be developed as part of a larger plan, and that the City is “dealing exclusively with Scott Stringer regarding this project.”

5.   As successor-in-interest to PPV's rights in the DDA Crow Canyon's liability, if any, is derived from PPV's actions.   Since we conclude in this section that PPV was properly granted summary judgment, it follows (as the trial court properly noted) that Crow Canyon also was entitled to summary judgment in this action.

6.   In fact, in a declaration filed in support of PPV's motion for summary judgment Stringer indicates that he would have preferred that there be no minimum lot size for development.   As he explains, the 25–acre restriction created a “significant difficulty” for PPV since it forced PPV to assemble at least 25–acre lots.   The property owners, who knew of this restriction, used this fact in negotiations to get PPV to pay higher prices for the land.

KLINE, Presiding Justice.

SMITH and PHELAN, JJ., concur.