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Lee Tartre 12941 Avenida La Valencia Poway, CA 92064-1901 Tel: (858) 674-1957 Diane Armstrong 12935 Avenida La Valencia Poway, CA 92064-1901 (858) 674-4519 Pro Per Plaintiffs

SUPERIOR COURT OF CALIFORNIA

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IN AND FOR THE COUNTY OF SAN DIEGO

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LEE TARTRE, individually and as Trustee for ) Case No.: 37-2008-00081870-CU-WM-CTL ) the TARTRE FAMILY TRUST; ALEX ) PETITIONERS OBJECTIONS TO ARMSTRONG; DIANE ARMSTRONG, ) STATEMENT OF DECISION ) Pro Per Petitioners/Plaintiffs, vs. CITY OF POWAY; POWAY CITY COUNCIL; and DOES 1-25, inclusive, Respondent
) ) ) ) ) ) ) ) ) ) ) ) ) Date: Judge: Dept: April 25, 2011 The Honorable Lisa A. Foster 60

On Remand From the Court of Appeal (4th District Appellate Case #D055225) Action Filed: April 14, 2008

Pursuant to California Rules of Court, rule 232(d) this Statement of Objection is filed in response to the Courts Statement of Decision issued April 25, 2011 in the above captioned matter.

PETITIONERS OBJECTIONS TO PROPOSED STATEMENT OF DECISION Case No. 37-2008-00081870-CU-WM-CTL

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1. Objection 1 Petitioners object to the proposed Statements denial of their prayer for attorneys fees because the issue is not ripe under section 1021.51. It is yet premature to rule on a prayer for relief because fees under CCP 1021.5 are not part of the cause of action but are incident to the cause and are properly awarded only on a post-judgment motion. (Snatchko v. Westfield LLC, 187 Cal.App.4th 469, 497 (2010) [114 Cal. Rptr. 3d 368].) As there is no requirement that plaintiff[s] plead these fees, a trial court errs in striking the prayer for attorney fees based on a failure to adequately plead their basis. Id. 2. Objection 2 Government Code 800 is applicable here because Plaintiffs produced affirmative evidence of the following: (1) this is a civil action, appealing an award, finding or other determination of any administrative proceeding (GC 800); (2) the ruling of the City Council was arbitrary and capricious (3) Petitioners prevailed on the merits; and (4).2 In granting Petitioners request for Writ of Mandamus under CCP 10853, the Appellate Court made expressed4 and implied5 findings that Poways actions were arbitrary and capricious.

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Such [CCP 1021.5] fees are not part of the underlying cause of action, but are incident to the cause and are properly awarded after entry of a ... judgment ...." (Washburn v. City of Berkeley (1987) 195 Cal.App.3d 578, 583 [240 Cal.Rptr. 784])
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That Petitioners are personally obligated to pay the fees incurred for this Petition, the fourth element, is to be pled in the moving papers for the Motion for Attorney fees.
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CCP 1085 is an inquiry into whether the agencys decision was arbitrary, capricious, entirely lacking in evidentiary support, contrary to established public policy, or procedurally unfair (Mike Moores 24-Hour Towing v. City of San Diego (1996) 44 Cal.App.4th 1294, 53 Cal.Rptr.2d 355)
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The courts will interfere by mandamus when the action taken by an administrative board is so palpably unreasonable and arbitrary as to indicate an abuse of discretion as a matter of law. (Sanders v. Los Angeles (1970)3 Cal.3d 252, 90 Cal.Rptr.370, P2d 201; italics added.)
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The 4th District Appellate justices rhetorically asked Mr. Boehmer, during oral argument, whether or not deciding the exact boundary location of the SFHA without first obtaining grade and base flood elevation was an arbitrary act or decision. 2

PETITIONERS OBJECTIONS TO PROPOSED STATEMENT OF DECISION Case No. 37-2008-00081870-CU-WM-CTL

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Blacks Law defines arbitrary as: Depending on individual discretion; determined by a judge rather than by fixed rules, procedures, or law...often termed arbitrary and capricious.

Blacks Law defines capricious as, contrary to the evidence or established rules of law.

3. Objection 3 Whether or not City Council members acted in an arbitrary and capricious matter is not the issue, the result was arbitrary and capricious. Given the opportunity to file their postjudgment motion, Petitioners would put forth evidence to support this element of GC 800. That respondent City Council may have been acting in good faith is irrelevant. (Adoption of Joshua S. (2008) 42 cal.4th 958 (Joshua S.) [We... hold only... that the party against whom such fees are awarded must have done or failed to do something, in good faith or not, that compromised public rights.] 4. Objection 4 Petitioners each incurred significant attorney fees in conjunction with bringing their Petition and planned to allege and prove said personal obligation of legal fees, along with a lack of meaningful pecuniary interest, in their post-judgment Motion for Attorney fees. Petitioners strong non-pecuniary motives to defend against respondents misguided actions do not disqualify them from receiving section 1021.5 fees. (Conservatorship of Whitley (2010) 50 Cal., 4th at p.1211 [a litigants personal non-pecuniary motives may not be used to disqualify litigant from obtaining fees under... section 1021.5]. Indeed, in the absence of some concrete personal interest in the issue being litigated, the putative plaintiff would lack standing to bring an action. (Press v. Lucky Stores, Inc. (1983) 34 Cal. 3d 311, 321, fn.11 [193 Cal.Rptr.900,667 P.2d 704]) Notwithstanding the aforementioned, the record establishes that Plaintiffs primary motive in pursuing the action was not to gain legislative approval but to restrain the arbitrary and capricious application of FEMAs Code of Federal Regulations and the
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PETITIONERS OBJECTIONS TO PROPOSED STATEMENT OF DECISION Case No. 37-2008-00081870-CU-WM-CTL

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Poway Municipal Code. Further, the record is replete with testimony of Powegians, who mobilized with only five days public notice, and whose pecuniary and nonpecuniary interests far outweigh any relief Petitioners might glean. This is not a case of litigants who are motivated solely by their own pecuniary interests and only coincidentally protects the public interest. (Angelheart v. City of Burbank (1991) 232 Cal. App. 3d 460, 470 [285 Cal. Rptr. 463]; Beach Colony II v. California Coastal Com. (1985) 166 Cal. App. 3d 106, 114 [212 Cal.Rptr. 485].) 5. Objection 5 Attorney fees are available to self-represented litigants. The issue is not in pro per representation, but whether or not attorney fees were actually incurred. Trope v. Katz (1995) 11 Cal.4th 274 (Trope) addressed the rights of an attorney to receive statutory attorney fees. In Trope, the plaintiff was an attorney who chose to represent himself. The Court determined that pro per attorneys do not incur fees in the legal sense. Attorney fees are recoverable for legal services of attorneys who assisted pro per attorney(s). (Mix v. Tumanjan Development Corporation, 102 Cal. App. 4th 1318(2002); Witte v. Kaufman (2006) 141 Cal.App.4th 1201, 1207-1209.) Petitioners should be afforded the legal opportunity to prove this element in a Motion for Attorneys fees to prove that they have each incurred fees for legal representation as well as for unbundled legal services. 6. Objection 6 Jobe v. City of Orange (2001) 88 Cal.App.4th 412, 416-419 is not sufficiently similar to the case at bar. Attorney fees were denied to Lutheran High School Association (LHS), a Real Party in Interest not a respondent, because of their significant pecuniary interest in physically expanding the high school they owned and operated. In the case at bar, Petitioners have no pecuniary interest in whether or not Poway citizens lose their right to purchase mandatory flood insurance at preferred rates; because their properties are not

PETITIONERS OBJECTIONS TO PROPOSED STATEMENT OF DECISION Case No. 37-2008-00081870-CU-WM-CTL

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required by FEMA to maintain flood insurance (testified to by both Tartre and Armstrong before this Court on March 4th hearing.) 7. Objection 7 The Statement of Decision deprives Petitioners of any and all opportunity to have the Court consider their basis for an award of attorney fees. Petitioners Motion for Attorney fees pursuant to CCP 1021.5 will put forth valid legal arguments, relevant case law, and submitted evidence that Petitioners have met all the elements required for an award of fees under Code of Civil Procedure section 1021.5 in that their suit: (1) conferred a significant benefit and enforced an important right affecting the public interest, (2) that the relief granted in both the Appellate Court and this Court transcend Petitioners private interest in their real property6, and, (3) that in acting as true private attorney generals Plaintiffs financial burden was out of proportion to their individual stakes in the matter.7 This element cannot be proved or refuted unless or until the Court is presented with the actual costs incurred by each Plaintiff. Plaintiffs will further be deprived of the opportunity to plead entitlement to private attorney general fees under the catalyst theory. Thus, an award of attorney fees may be appropriate where plaintiffs lawsuit was a catalyst motivating defendants to
In Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 321, fn. omitted [193 Cal.Rptr. 900, 667 P.2d 704], plaintiffs trying to qualify an initiative measure for a statewide election were ordered by certain store officials to stop gathering signatures in front of the store. Plaintiffs succeeded in obtaining an injunction restraining defendants from denying them access to the premises, and were awarded attorney fees pursuant to section 1021.5. Concluding that the award was not an abuse of discretion, the Supreme Court stated that because plaintiffs had no pecuniary interest in the result of the litigation, the financial burden was such that a fee award was appropriate to insure the effectuation of the people's fundamental rights of free expression and petition. (34 Cal.3d at pp. 318-321.) The court acknowledged that plaintiffs had personal interests in the outcome of the initiative sufficient to induce them to bring the action, but considered that fact irrelevant. "[S]ection 1021.5 focuses not on plaintiffs' abstract personal stake, but on the financial incentives and burdens related to bringing suit." (Id., at p. 321, fn. 11.)
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Section 1021.5 mandates that the necessity and financial burden of private enforcement must be such that an award of fees is appropriate. An award is appropriate when the cost of the claimant's legal victory transcends his or her personal interest. Stated another way, the question is whether the need for pursuing the lawsuit placed a burden on the plaintiff out of proportion to his or her individual stake in the matter. (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 941 [154 Cal.Rptr. 503, 593 P.2d 200].) "This requirement focuses on the financial burdens and incentives involved in bringing the lawsuit." (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 321, fn. omitted [193 Cal.Rptr. 900, 667 P.2d 704], emphasis added.) 5

PETITIONERS OBJECTIONS TO PROPOSED STATEMENT OF DECISION Case No. 37-2008-00081870-CU-WM-CTL

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provide the primary relief sought . . . (Robinson v. Kimbrough, 652 F.2d at p. 465 (5th Cir.1981) italics added.) A plaintiff will be considered a successful party where an important right is vindicated by activating defendants to modify their behavior. (Westside Community for Independent Living, Inc. v. Obledo (1983) 33 Cal. 3d at pp. 352-353 [188 Cal.Rptr. 873, 657 P.2d 873, 657 P.2d 365]) 8. Objection 8 Petitioners seek a determination that they are entitled to costs under CCP 1094.5 pursuant to a post-judgment memorandum of costs. CCP 1094.5(a) the prevailing party is entitled to costs (see also: Government Code 11523). 9. Objection 9 Petitioners seek a determination regarding the propriety and scope of their action for Injunctive Relief. ANALYSIS In response to any objections or simply on its motion, the trial court, before final judgment has been entered, may amend the statement of decision. (Bay World Trading, Ltd. V. Nebraska Beef, Inc. (2002) 101 Cal.App.4th 135, 140-141.) CONCLUSION For the reasons stated above, Petitioners respectfully and timely object to the proposed Statement of Decision and request the Court (1) consider Petitioners claim for injunctive relief and (2) delay ruling on Petitioners right to an award of Attorney fees until after a post-judgment motion for attorney fees may be properly submitted and considered on the merits. Dated: April 29, 2011 Respectfully Submitted, ________________________________ Lee Tartre, Plaintiff in Pro Per

_____________________________________ Diane Armstrong, Plaintiff in Pro Per

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PETITIONERS OBJECTIONS TO PROPOSED STATEMENT OF DECISION Case No. 37-2008-00081870-CU-WM-CTL