Fee Request of Over $1.785 Million Denied In Entirety.
For intervening parties in suits with potential fee recovery in CCP § 1021.5 cases, San Diego Municipal Employees Assn. v. City of San Diego, Case No. D066886 (4th Dist., Div. 1 Feb. 9, 2016) (published) is a stark reminder that you must bring something material to the table—if not, you risk getting no or very minimal fees.
In this case, four employee labor unions intervened in an action on employees’ behalf asserting the same or similar arguments (with some nuances) as the municipal entities carrying the load in this case. After the case was settled, the unions sought to recover $1,785,147 in attorney’s fees under the private attorney general statute, CCP § 1021.5.
Both the lower and appellate courts said, eloquently and politely, naught!
The reason for the fee denial was not petty or punitive in nature. Rather, it was determined that the necessity element of section 1021.5 was not satisfied. Intervening parties, in situations where a public entity’s parallel advocacy was primary and might carry the day, must show they proffered significant factual and legal theories and produced substantial, material evidence which was not merely duplicative or cumulative to what was advanced by the governmental agency. That is the test adopted by the appellate court (Slip Op., p. 8), so, intervening parties, you are put on notice for your burden of proof in future section 1021.5 cases.
Pro Tem Justice Prager, a San Diego County Superior Court judge sitting by assignment, authored the 3-0 opinion.