Private Attorney General Statute/Special Fee Shifting Statute: Optometrist Overturning ALJ Determination Against His Certificate Not Entitled To Fee Award Under Private Attorney General Statute Or Government Code Section 800

 

$80,000 Fee Award/$2,000 Costs Award Go POOF!

 

     Artist:  Jean-Léon Gérôme.  1824 – 1904.

     Optometrist had gotten a nice win--a superior court overturned an ALJ’s determination that the optometrist had violated the standard of care in relation to a patient’s cataracts diagnosis. The lower court then awarded optometrist about $80,000 in fees and about $2,000 in costs under CCP § 1021.5 (the private attorney general statute) and Government Code section 800 (allowing a prevailing party to recover up to $7,500 in fees if an administrative law proceeding determination was arbitrary or capricious in nature).

    Appealing government got the fee awards tossed out on appeal.  Keener v. Smith,No. A129541(1st Dist. Div. 3 Sept. 27, 2013) (unpublished).

    The reason? Optometrist had too much of a personal and financial interest so as to not qualify for a private attorney general award: the superior court decision only vindicated his personal right to maintain his certificate (versus enforcement of a larger public right) and optometrist had a significant personal interest in clearing his name.

     With respect to the section 800 award, that was infirm because there was some evidence to support the accusation and enough proof to lead to an adverse ALJ determination only reversed on appeal.