Private Attorney General: Plaintiff’s Failure To Seek Resolution Through Fish And Game Commission Prevented His Recovery Of CCP § 1021.5 Fees

 

Attempts to Settle With Others—But Not The Right Agency—Did Not Carry The Day.

     Plaintiff filed a petition/complaint aimed to make the California Department of Fish and Wildlife reopen a Riverside County mirage trail in an ecological reserve. The defense demurred, which was sustained after new California legislation allowed the Fish and Game Commission discretion to determine seasonal openings/closures of trails such that plaintiff’s lawsuit was moot. Plaintiff moved to recoup $100,000 in fees under CCP § 1021.5 against the defense. The trial judge denied the request on the basis that, although making some settlement overtures to the Department and the Attorney General, plaintiff did not attempt to settle with the Commission, the entity having ultimate decision-making authority.

     The fee denial was affirmed in Carian v. California Department of Fish and Wildlife, Case No. D066683 (4^th Dist., Div. 1 Mar. 9, 2015) (unpublished).

     The problem, as the appellate court perceived it, was that plaintiff did not attempt settlement efforts with the right agency. Because plaintiff was relying on the catalyst theory articulated in Graham v. DaimlerChrysler Corp., 34 Cal.4^th 552 (2004), it was not determinative that settlement efforts were made with other agencies given that the Commission was the ultimate authority under applicable statutes to allow or disallow access to the trail. So, had plaintiff contacted the Commission, the dispute might have been resolved, with the trial court’s decision on this ground being no abuse of discretion.