City’s Confession Of Error Early On Did Not Retard Fee Recovery.
Harbor Seal. Wordless symbol at English Wikipedia. Creative Commons Attribution-Share Alike 3.0 Unported.
Animal Protection and Rescue League v. City of San Diego, Case No. D065178 (4th Dist., Div. 1 May 27, 2015) (partially published; fee entitlement, but fee amount/costs discussion not published) involved plaintiff arguing the need for a year-round guideline rope at the La Jolla Children’s Pool to protect harbor seals from humans. City, which was named as a respondent, finally answered down the line that the relief was warranted and that it erred in denying a Site Development Permit for an annual rope barrier. Plaintiff then moved for $123,243.75 in attorney’s fees under California’s private attorney general statute (CCP § 1021.5) and $555 in routine costs. The trial judge granted plaintiff $82,717.50 in fees and costs, inclusive of the $555 in costs.
Except for the $555 in costs, the fee/costs award was affirmed upon City’s appeal.
City’s main argument that it was not an “opposing party” for 1021.5 purposes, but this was incorrect because it was a named respondent and its actions were at issue. However, City’s real “spin” was that fees were undeserved because it confessed error early on. The appellate court disagreed, finding that this confession did not disqualify City as an “opposing party” and acceptance of such an argument would gut the catalyst theory of fee recovery. This determination was made in the published portion of the opinion.
In the unpublished portions, the Court of Appeal found the award of fees for pre-petition work was no abuse of discretion, although it did strike the $555 costs award because plaintiff conceded that it failed to file the necessary costs memorandum pursuant to California Rule of Court 3.1700(a)(1). However, the appellate court did indicate that plaintiff was entitled to costs and fees on appeal, remanding the additional fee determination to the trial judge.
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