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March 4, 2026 Get Citation Alerts Download PDF Add Note

Physicians for Social etc. v. Dept. of Toxic Substances Control

California Court of Appeal

• Citations: None known

• Docket Number: C100487

• Opinion

• Authorities (9)

• Cited By (0)

• Summaries (0)

• Similar Cases (13.4K)

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Combined Opinion

Filed 3/4/26

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT

(Sacramento)

PHYSICIANS FOR SOCIAL RESPONSIBILITY - C100487
LOS ANGELES et al.,
(Super. Ct. No. 34-2013-
Plaintiffs and Appellants, 80001589-CU-WM-GDS)

v.

DEPARTMENT OF TOXIC SUBSTANCES
CONTROL,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Sacramento County,
Shelleyanne W.L. Chang, Judge. Affirmed.

Strumwasser & Woocher, Michael J. Strumwasser, Andrea Sheridan Ordin,
Beverly Grossman Palmer, Julia Michel, Samantha McNichols; Consumer Watchdog,
Harvey Rosenfield and Pamela Pressley for Plaintiffs and Appellants.

Rob Bonta, Attorney General, David Zaft and Kavita Lesser, Deputy Attorneys
General for Defendant and Respondent.

1
In Physicians for Social Responsibility - L.A. v. Dept. of Toxic Substances Control
(May 2, 2023, C088821) (nonpub. opn.) (Physicians), we affirmed the superior court’s
ruling that denied appellants’ petition for a writ of mandate challenging respondent’s
failure to comply with the California Environmental Quality Act (CEQA) (Pub.
Resources Code, § 21000 et seq.). The parties are again before us, this time for the
purpose of determining whether attorney fees are to be awarded to appellants as the
prevailing party. The superior court found appellants were not entitled to fees under
Code of Civil Procedure section 1021.51 and denied appellants’ request for fees. We
conclude that, contrary to appellants’ claims, the trial court did not abuse its discretion in
so ruling.
LEGAL AND FACTUAL BACKGROUND
For purposes of this appeal, we rely on the following summary of the statement of
facts in our prior opinion. (Physicians, supra, C088821.)
For decades, the federal government made and tested liquid-rocket engines,
nuclear reactors, and various nuclear applications at the Santa Susana Field Laboratory
(SSFL) in southeastern Ventura County. As a result, the soil, groundwater, and bedrock
were seriously contaminated. During this time, the Boeing Company (Boeing), who
owns the majority of the land, leased 90 acres of the site, known as Area IV, to the
federal Department of Energy (DOE). DOE ended its nuclear research program at SSFL
in the 1980s. Boeing’s intent to demolish several of its buildings within Area IV
spawned the underlying lawsuit.
SSFL has been undergoing cleanup efforts for years. Different aspects of the
cleanup are being carried out under different federal and state authorities. The federal
government, through the DOE, is responsible for supervising and implementing the

1 Undesignated statutory references are to the Code of Civil Procedure.

2
cleanup of radioactive contamination. California’s Department of Toxic Substances
Control (DTSC) is the lead agency responsible for regulating the cleanup of chemical
contamination. Through the Hazardous Waste Control Law (Health & Saf. Code,
§ 25100 et seq.) and California’s Carpenter-Presley-Tanner Hazardous Substance
Account Act (HSAA) (Health & Saf. Code, § 78000 et seq.)2, DTSC regulates soil and
groundwater cleanup. In addition to its overall regulatory authority pursuant to statute,
DTSC oversees the chemical remediation of SSFL pursuant to two consent orders: the
2007 consent order for corrective action (2007 Order), and the 2010 administrative order
on consent for remedial action (2010 AOC). DTSC’s selection of the final remedies to
remediate the contaminated soil and groundwater at the SSFL site is subject to
environmental review pursuant to CEQA. At the time of the underlying lawsuit, DTSC
represented it was conducting a CEQA review of the proposed soil and groundwater
cleanup required under the 2007 Order and the 2010 AOC.
When this litigation was initiated in August 2013, Boeing had notified DTSC of its
intent to demolish four structures. Appellants raised concerns about the environmental
consequences of demolition and offsite disposal. Appellants filed a petition for writ of
mandate asserting claims under CEQA and the Administrative Procedure Act (Gov.
Code, § 11340 et seq.), along with a claim that the State Department of Public Health
(DPH) violated a writ of mandate issued in 2002. Within days, DTSC and Boeing agreed
to pause Area IV demolition.

2 Since our prior decision in Physicians, supra, C088821, the Legislature has
reorganized and recodified the HSSA from Health and Safety Code former section 25300
et seq. to Health and Safety Code section 78000 et seq. without substantive change.
(Stats. 2022, ch. 257.)

3
In an amended writ petition, appellants raised five causes of action. As relevant
here,3 appellants asserted that Boeing’s demolition and disposal activity was subject to
CEQA but that DTSC failed to consider the environmental impact of such activity.
Like the superior court, we disagreed. We concluded that although the soil and
groundwater remediation programs were undisputably subject to CEQA, the demolition
of the Area IV buildings was a private activity entirely within Boeing’s discretion and
constituted activity that was not subject to discretionary approval by a public agency, and
thus not subject to CEQA. The California Supreme Court denied review. (Physicians,
supra, C088821, rev. den. July 26, 2023, S280480.) Thus, appellants did not obtain any
of the relief they sought through either the judgment issued by the superior court or the
decision by this court.
In June 2023, after we issued our decision but before our high court denied review,
DTSC issued the final Environmental Impact Report (final EIR) for SSFL. Regarding the
Area IV building demolition, the final EIR stated: “To facilitate a more conservative and
quantitative analysis of impacts, DTSC is including the remaining Boeing building
demolition as part of the analysis of project impacts.”4 The “Public Review” section of
the final EIR states, in part, “Although no prior authorization from DTSC is required for
Boeing’s building demolition, DTSC analyzed this activity in the Final []EIR as if it were
part of the project in order to provide a conservative assessment of the impacts from the
site cleanup.” The “Public Review” and “Responses to Comments” sections of the final

3 Appellants contend that as relief was only achieved from DTSC, appellants do not
seek fees from DPH or Boeing. Accordingly, we need only discuss the prior claim
against DTSC.
4 In its prior draft, DTSC described the demolition of Boeing’s Area IV buildings
within the larger remediation project as “not subject to DTSC approval, and is therefore
not evaluated or described in this []EIR as part of the proposed project. However,
impacts stemming from this action are included in the cumulative analysis of this []EIR.”

4
EIR both note that aspects of the demolition of the buildings were the subject of the
litigation that resolved in favor of DTSC on all claims.
According to appellants, DTSC’s analysis of Boeing’s demolition “as if it were
part of the project to provide a conservative estimate of project impacts” means
appellants obtained the primary objective of the litigation, i.e., “review in the Final EIR,
reflecting DTSC’s efforts to comply with CEQA and to mitigate the impacts of the entire
SSFL remediation, including Boeing’s demolition.” Stating that the litigation was a
catalyst for this outcome, appellants contend they are a “successful party” under a
catalyst theory applicable to section 1021.5 and filed a motion for attorney fees to be
recovered from DTSC.
The superior court denied appellants’ request on the basis that appellants could not
show they were the successful party within the meaning of section 1021.5. The court
found that “[a]t the time DTSC took the action Petitioners claim was the result of this
litigation, there was no threat of victory as DTSC had already achieved judgment in its
favor before the trial court and the appellate court.” Citing to Coalition for a Sustainable
Future in Yucaipa v. City of Yucaipa (2015) 238 Cal.App.4th 513 (Yucaipa), the court
noted that “ ‘[n]one of the cases applying the catalyst theory involved situations in which
an adverse judgment had already been rendered against the party seeking attorney fees.’ ”
The court specifically rejected appellants’ argument that the litigation had merit because
appellants successfully obtained an injunction in 2013, finding that whether the litigation
initially had merit was irrelevant because both the superior and appellate courts have
since denied the petition on its merits, rendering the lawsuit “objectively without legal
merit.” (Skaff v. Rio Nido Roadhouse (2020) 55 Cal.App.5th 522, 542.) The court noted
that “DTSC’s voluntary modification of the subject EIR after successful litigation in their
favor, should not subject DTSC to attorneys’ fees that they otherwise would not be
required to pay if they had not voluntarily taken the initiative and modified the EIR
subsequent to the litigation’s conclusion.”

5
Appellants appealed.
DISCUSSION
A. Legal Background
“In general, a prevailing party may recover attorney’s fees only when a statute or
an agreement of the parties provides for fee shifting.” (Kirby v. Immoos Fire Protection,
Inc. (2012) 53 Cal.4th 1244, 1248.) The private attorney general doctrine, codified in
section 1021.5, is such a fee-shifting statute. (Laffitte v. Robert Half Internat. Inc. (2016)
1 Cal.5th 480, 489.) “To qualify for fees under the statute, a [party] must show that (1) it
is a successful party; (2) the action resulted in the enforcement of an important right
affecting the public interest; (3) a significant benefit was conferred on the general public
or a large class of persons; and (4) the necessity of private enforcement and the attendant
financial burden make an award of fees appropriate.” (Department of Water Resources
Environmental Impact Cases (2022) 79 Cal.App.5th 556, 571.)
While the term “prevailing party” is synonymous with “successful party,” it is not
always necessary for a plaintiff to obtain a judgment in its favor to qualify as a successful
party. (Yucaipa, supra, 238 Cal.App.4th at p. 521.) “ ‘The “catalyst theory” permits an
award of attorney fees even when the litigation does not result in a judicial resolution if
the defendant changes its behavior substantially because of, and in the manner sought by,
the litigation.’ ” (California Public Records Research, Inc. v. County of Yolo (2016)
4 Cal.App.5th 150, 191, quoting Yucaipa, at p. 521.) To obtain attorney fees under this
theory, the moving party must establish that (1) its “lawsuit was a catalyst motivating the
defendants to provide the primary relief sought”; (2) “the lawsuit had merit and achieved
its catalytic effect by threat of victory, not by dint of nuisance and threat of expense”; and
(3) it “reasonably attempted to settle the litigation prior to filing the lawsuit.” (Tipton-
Whittingham v. City of Los Angeles (2004) 34 Cal.4th 604, 608.)
In ruling on a request for attorney fees, the trial judge must determine who is the
successful party under the catalyst theory. We review the trial judge’s determination for

6
abuse of discretion. (City of San Clemente v. Department of Transportation (2023)
92 Cal.App.5th 1131, 1151.) We will reverse only if there is “ ‘no reasonable basis’ ” for
the court’s conclusion. (Westside Community for Independent Living, Inc. v. Obledo
(1983) 33 Cal.3d 348, 355.)
B. Analysis
The superior court denied appellants’ motion for attorney fees under section
1021.5, finding that appellants could not meet their burden of demonstrating that their
lawsuit had merit and achieved its catalytic effect by threat of victory, the second element
of the catalyst theory, and thus were not “successful parties” within the meaning of
section 1021.5.
The second element of the catalyst theory requires inquiry into an action’s
objective legal merit, not a plaintiff’s subjective beliefs regarding the action. (Graham v.
DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 575 (Graham).) “Our Supreme Court has
defined merit, for purposes of the catalyst rule, to mean ‘ “not frivolous, unreasonable, or
groundless,” ’ i.e., that the questions of law or fact are ‘ “ ‘grave and difficult.’ ” ’ ”
(Department of Water Resources Environmental Impact Cases, supra, 79 Cal.App.5th at
p. 572, fn. 5.) This determination “is not unlike the determination [the court] makes
when asked to issue a preliminary injunction, i.e., not a final decision on the merits but a
determination at a minimum that ‘ “the questions of law or fact are grave and
difficult.” ’ ” (Graham, at pp. 575-576.)
Challenging the superior court’s conclusion, appellants contend the trial court
erred in its inflexible approach to determining whether the lawsuit had merit because it
overlooked the reality that DTSC deviated from its position during litigation to ultimately
agree that demolition in Area IV should be considered in its CEQA analysis—an action
that itself demonstrates appellants’ petition was not frivolous. Appellants further argue
that early litigation successes, such as the preliminary injunction and defeat of a motion
for summary judgment, provide additional proof that the litigation had merit. Finally,

7
appellants contend that the timing of the issuance of the final EIR establishes the merits
of the lawsuit because it creates an inference that DTSC deliberately delayed the report to
avoid “mooting the case, as would occur in the typical ‘catalyst’ fee award.” We are not
persuaded.5
As an initial matter of law, we are unwilling to extend the catalyst theory here
wherein the relief sought in the underlying litigation was voluntarily provided only after
the merits of the claims had been fully litigated to a final judgment against appellants.
(See Skaff v. Rio Nido Roadhouse, supra, 55 Cal.App.5th at p. 540 [“we are not
convinced that the catalyst theory should even apply here,” as “[t]he catalyst theory is
generally not invoked in cases where the merits have been fully litigated to a final
judgment”]; Council for Education & Research on Toxics v. Starbucks Corp. (2022)
84 Cal.App.5th 879, 901 & fn. 15 [questioning whether the plaintiff/appellant “could be
deemed a successful party under the catalyst theory after litigating and losing its case on
the merits” but deciding issue of attorney fees on different grounds].) “What makes a
case come under the catalyst theory is . . . the voluntary action of the defendant without
any judicial resolution of the issues.” (County of Colusa v. California Wildlife
Conservation Bd. (2006) 145 Cal.App.4th 637, 658, italics added.) In other words, the
catalyst theory may provide a moving party a pathway to attorney fees “[i]n the absence
of a judicial resolution.” (Skinner v. Ken’s Foods, Inc. (2020) 53 Cal.App.5th 938, 946.)
Considering the judicial resolution reached in this case, namely that the lawsuit lacked
merit, we conclude that an award of attorney fees under the catalyst theory is
unwarranted.

5 Appellants also contend that the remaining elements of a successful party under a
catalyst theory and the additional requirements under section 1021.5 are met. In light of
our conclusion that the record establishes that the court did not abuse its discretion in
concluding that appellants’ lawsuit was not a catalyst for the DTSC’s postlitigation
decision to analyze environmental impacts of the demolition of Area IV buildings, we
need not address them.

8
In an effort to convince us otherwise, appellants rely on Graham and urge us “To
focus on the fact that judgment was entered against Appellants is inconsistent with the
Supreme Court’s express recognition that ‘[o]ur prior cases uniformly explain that an
attorney fee award may be justified even when plaintiff’s legal action does not result in a
favorable final judgment.’ ” (See Graham, supra, 34 Cal.4th at p. 565.) We find the
factual difference in Graham significant and appellants misapply its holding.
The plaintiffs in Graham purchased a truck from the defendant, which the
defendant had marketed as capable of towing 6,400 pounds when the truck could tow
only 2,000 pounds. The plaintiffs filed suit against the defendant alleging a single breach
of warranty cause of action and sought return of their purchase or lease payments,
compensatory damages, and attorney fees. (Graham, supra, 34 Cal.4th at p. 562.) While
the matter was pending, the defendant offered a repurchase or replacement to all truck
buyers, including the plaintiffs. The defendant then demurred to the complaint, and the
trial court sustained the demurrer without leave to amend and dismissed the case, finding
it was moot. (Id. at p. 563.) However, litigation regarding attorney fees continued and
the trial court ultimately awarded the plaintiffs attorney fees under the catalyst theory.
The Court of Appeal affirmed and our Supreme Court granted review. (Id. at pp. 563-
565.)
In upholding the award of attorney fees, the Supreme Court reinforced that “an
attorney fee award may be justified even when plaintiff’s legal action does not result in a
favorable final judgment” (Graham, supra, 34 Cal.4th at p. 565), and explained that
“[t]he principle upon which the theory is based—that we look to the ‘impact of the
action, not its manner of resolution’ [citation]—is fully consistent with the purpose of
section 1021.5: to financially reward attorneys who successfully prosecute cases in the
public interest.” (Id. at p. 568, italics added.) And therein lies the problem. Appellants
here did not successfully prosecute the underlying case. Rather, they prosecuted a case

9
that both the trial court and this court determined had no legal merit. Graham addressed
this type of situation, yet appellants spend no time discussing that portion of the decision.
Graham went on to analyze what the Legislature intended as “successful party” as
used in section 1021.5. In doing so it focused on a court’s need to inquire “not into a
defendant’s subjective belief about the suit but rather to gauge, objectively speaking,
whether the lawsuit had merit.” (Graham, supra, 34 Cal.4th at p. 575.) Graham held,
“The trial court must determine that the lawsuit is not ‘frivolous, unreasonable or
groundless’ (Stivers v. Pierce [(9th Cir. 1995)] 71 F.3d [732,] 752, fn. 9), in other words
that its result was achieved ‘by threat of victory, not by dint of nuisance and threat of
expense.’ ” (Ibid.) The Graham court concluded that in determining the second element
of the catalyst theory, i.e., whether the relevant result was achieved “ ‘by threat of
victory,’ ” the “trial court may review [the] factual background not only to determine the
lawsuit’s catalytic effect but also its merits. Attorney fees should not be awarded for a
lawsuit that lacks merit, even if its pleadings would survive a demurrer.” (Id. at pp. 575,
576, italics added.) The court also saw “no reason to limit a trial court’s inquiry
regarding the merits of the case to an examination of whether the pleadings state a cause
of action.” (Id. at p. 576.) Thus, if our Supreme Court believes that “trial courts will be
able to conduct an abbreviated but meaningful review of the merits of the litigation” in
cases that were terminated prior to final judgment, we see no impediment to a court’s
ability to rely on a final judgment on the merits rendered against the moving party in
determining the merit and catalytic effect of the lawsuit. (Ibid.) After all, a final
judgment on the merits against the moving party settles the question of “objectively
speaking, whether the lawsuit had merit.” (Id. at p. 575, italics added.)
Appellants cite no legal authority for the proposition that the catalyst theory has
been applied in situations where, as here, the moving party has previously lost the
underlying suit through judgment on the merits against it. (See Tipton-Whittingham v.
City of Los Angeles, supra, 34 Cal.4th at p. 607 [lawsuit dismissed when claims were

10
rendered moot by informal negotiations resulting in comprehensive changes].) As noted
by the superior court, DTSC on appeal, and the Fourth District Court of Appeal, “[n]one
of the cases applying the catalyst theory involved situations in which an adverse
judgment had already been rendered against the party seeking attorney fees. Use of the
terminology ‘meritorious action’ in the catalyst theory cases refers to proceedings which
were rendered moot before a judgment on the merits, in order to determine if a party was
the prevailing party where there is no judgment. That did not happen here.” (Yucaipa,
supra, 238 Cal.App.4th at p. 524.)
In Yucaipa, the city approved land use entitlements to further Target’s plan to
build a shopping center. The appellant filed a petition for writ of mandate alleging the
city’s approval violated CEQA. (Yucaipa, supra, 238 Cal.App.4th at p. 517.) The trial
court denied the petition for writ of mandate. While the appeal was pending, Target was
unable to purchase the land and abandoned the project. In turn, the city revoked the land
use entitlements. The city and Target then successfully moved to dismiss the appeal as
moot and, at the appellate court’s direction, the trial court dismissed the underlying action
with prejudice. (Id. at pp. 518-519.) The appellant then sought attorney fees, arguing
that the litigation was the catalyst for the city’s revocation of the land use entitlements
and thus it was the successful party. (Id. at p. 519.) Both the trial and appellate courts
disagreed. (Ibid.; see also id. at p. 525.) In affirming the trial court’s order denying
attorney fees, the appellate court found the judgment against the appellant demonstrated
that the underlying action had no merit and it they could not show it achieved success by
threat of victory. The court explained, the “ ‘action’ was the CEQA petition, and that
petition had been denied by the trial court’s initial judgment, only to be later dismissed
with prejudice. . . . [¶] . . . Having lost twice, [the appellant] cannot show ‘threat of
victory.’ ” (Id. at p. 524.) So too here.
Appellants contend the trial court wrongly relied on Yucaipa because it is factually
distinguishable and, in concluding the appellant was not “successful” for purposes of

11
attorney fees, the Yucaipa court misapplied Graham. We agree that the project at issue in
Yucaipa was different than the one before us and, unlike here, that case was dismissed
prior to an appellate review of the merits. Yet in both Yucaipa and this case, there was a
judicial resolution against the appellants prior to the respondents’ voluntary change in
behavior. In this case, as in Yucaipa, that judicial resolution means there was no “threat
of victory,” the suit was not a catalyst to the respondents’ actions, and the appellants were
not a successful party. (Yucaipa, supra, 238 Cal.App.4th at p. 525.)
Contrary to appellants’ contention, this is consistent with the “broad, pragmatic
view of what constitutes a ‘successful party’ ” promoted in Graham. (Graham, supra,
34 Cal.4th at p. 565.) Graham charges the trial court to, in its discretion, “ ‘ “realistically
assess the litigation and determine, from a practical perspective, whether or not the action
served to vindicate an important right so as to justify an attorney fee award” under
section 1021.5.’ ” (Id. at p. 566.) We agree with the trial court’s determination that a
realistic assessment of this litigation, which ended in a judgment in DTSC’s favor, means
appellants were not the successful party and therefore not entitled to attorney fees.
Appellants also rely on the chronology of events to support their argument that the
lawsuit was the catalyst for the actions taken by DTSC. They contend that because the
draft in which DTSC signaled its intent to change course in its CEQA analysis was dated
February 2023, three months before our opinion was issued, DTSC clearly modified its
behavior as a result of the lawsuit. We recognize that “[w]hen, after litigation is initiated,
a defendant has voluntarily provided the relief a plaintiff is seeking, the chronology of
events may raise an inference that the litigation was the catalyst for the relief.” (Hogar
Dulce Hogar v. Community Development Com. of City of Escondido (2007)
157 Cal.App.4th 1358, 1366.) However, we disagree that such an inference is
appropriate here. First, DTSC presented evidence that the litigation was not a factor in its
decision to change the scope of the CEQA analysis. The branch chief for SSFL averred
that the “timing of the release of the final EIR was not related in any way to the litigation

12
in this case” and provided several justifications for the timing of the release including the
“highly complex and technical nature of the regulatory program and the number of
interested parties,” mediation with Boeing regarding the implementation of the 2007
Consent Order, and the COVID-19 pandemic. We also note that this lawsuit was nearly
10 years old with all major components of litigation complete when DTSC released its
final EIR including the Area IV buildings’ demolition. That the release of the final EIR
came after we issued our opinion ruling in DTSC’s favor removes any possibility that the
“threat of victory” was the catalyst to DTSC’s actions. “[I]n order to justify a fee award,
there must be a causal connection between the lawsuit and the relief obtained.” (Westside
Community for Independent Living, Inc. v. Obledo, supra, 33 Cal.3d at p. 353.) There is
no such causal connection here.
Finally, appellants contend that precluding an award under a catalyst theory is
inconsistent with public policy because they undertook significant litigation to obtain a
benefit for the common good—which they ultimately obtained by DTSC’s voluntary
postlitigation actions in including the demolition activity in the final EIR. Again, we are
not persuaded. As explained in Graham, the catalyst theory preserves important policies
underlying section 1021.5 by ensuring that a defendant may not litigate vigorously
against a meritorious public interest case and then avoid paying attorney fees by
voluntarily providing relief before a court order is entered. (Graham, supra, 34 Cal.4th at
p. 574.) It also preserves judicial resources, by encouraging a plaintiff to discontinue
litigation once the defendant acquiesces to the remedy initially sought. (Id. at p. 573.)
The court stated, “It would be perverse, and contrary to the basic public interest
objectives of section 1021.5, to hold that a plaintiff who obtains a final judgment has
‘enforced’ a right, but not a plaintiff whose litigation position is so strong that it achieves
the same result by compelling the defendant to change its conduct rather than face a
probable judgment against it.” (Id. at p. 572.)

13
Such policy concerns are not present in this case. By litigating the underlying
lawsuit for 10 years before obtaining a judgment in its favor, DTSC’s voluntary
postlitigation actions did not effectuate an avoidance of attorney fees on a meritorious
public issue or preserve judicial resources such that appellants should be reimbursed for
attorney fees for their efforts in the lawsuit. The catalyst theory exists to award fees to a
plaintiff when the plaintiff’s litigation is successful and the opposing party provides the
requested relief under the threat of judicial compulsion. (Graham, supra, 34 Cal.4th at
pp. 560, 566-568.) Here, DTSC was not under threat of judicial compulsion when it
voluntarily included aspects of the demolition of Boeing’s Area IV buildings in the final
EIR. Public policy associated with the catalyst theory is therefore not offended by the
denial of appellants’ request for attorney fees in this case.
We conclude appellants have failed to establish the criteria necessary for an award
of attorney fees under section 1021.5 on a catalyst theory and thus the trial court did not
abuse its discretion in denying appellants’ motion for attorney fees. (See California
Public Records Research, Inc. v. County of Yolo, supra, 4 Cal.App.5th at p. 192.)
DISPOSITION
The judgment and order denying attorney fees are affirmed. DTSC shall recover
its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

/s/
EARL, P. J.

We concur:

/s/
HULL, J.

/s/
FEINBERG, J.

14