Third District Affirms Fee Denial Where Project Scope Went Ahead After Correction of Minor Blemishes.
California's private attorney general statute (Code of Civil Procedure section 1021.5) requires a significant public benefit as an indispensable element for fee recovery. These requests are often brought by winners in California Environmental Quality Act (CEQA, Pub. Resources Code, ยง 21000 et seq.) disputes. Here is yet another one, with the CEQA winner not recovering fees based on prevailing on fairly technical points that were correctable and did not change the scope of the impacted project.
In Service Employees International Union v. City of Sacramento, Case No. C054087 (3d Dist. July 1, 2009) (unpublished), plaintiff successfully challenged Sutter Health's expansion of its existing medical center in Sacramento's midtown area on three minor CEQA points. However, the EIR was recertified such that the trial court discharged the initial CEQA-based writ and denied plaintiff's motion to recoup $307,090.80 in attorney's fees under section 1021.5. The lower court essentially determined that the three CEQA issues were "minor blemishes" that could be repaired by the City in a way that did not change the scope of the expansion project. The lower court found that no broad-based precedent stemmed from its ruling.
The Third District affirmed the fee denial, much to the chagrin of the plaintiff that had expended substantial fees on the CEQA challenges.
It was not an abuse of discretion to determine that the minor blemish repair failed to constitute a substantial public benefit. Furthermore, the challenged impacts were not significantly worse than originally estimated, such that plaintiff's win "rested on a minor procedural CEQA issue." The relatively narrow scope of the victory could not be held to be a significant public benefit, given the deference that must be paid to the trial court's assessment made below.
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