Whitley Not Limited to Private Enforcement Actions.
City of Maywood v. L.A. Unified School Dist., Case Nos. B233739/B236408 (2d Dist., Div. 7 July 18, 2012) (partially published; fee discussion published) involved a municipality which won a CEQA writ proceeding challenging a final environmental impact report relating to a high school project, notwithstanding that a majority of its claims were rejected. The trial court awarded winning City about $670,000 in attorney’s fees under California’s private attorney general statute, CCP § 1021.5.
Although the matter had to be remanded given that the appellate court reversed some of the winning bases of City garnered in lower court writ proceedings, it did take the opportunity to address and publish on an issue of first impression: does Whitley’s (Conservatorship of Whitley, 50 Cal.4th 1214 (2010)) holding that a private enforcement litigant’s nonpecuniary interests in a lawsuit does not disqualify the litigant from a 1021.5 award--under the “necessity/financial burden” element of the statute--also apply to a public enforcement action (in this case, an action by the City of Maywood)? Answer: Whitley does apply to a public enforcement action, based on the statute, its underlying policy, and legislative history all supporting the conclusion reached on the issue.
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