Private Attorney General, Special Fee Shifting Statute: Plaintiff Was Not Successful So As To Be Entitled To CCP § 1021.5 Fees Because He Did Not Achieve His Primary Objective And Did Not Prevail Under “Before And After Test” For A Successful Party

Plaintiff Wanted Reinstatement of His Driver’s License, But That Did Not Occur—He Only Got A New DMV Remand Revocation Hearing Based On DUI Charges; He Also Did Not Prevail For A Smaller Fee Award Under Government Code Section 800.

            California’s private attorney general statute, Code of Civil Procedure section 1021.5, has a multi-prong test which must be satisfied before a litigant is eligible for fee recovery. The first element is that the party is “successful,” really synonymous with being a “prevailing party.” Plaintiff in the next case failed to succeed on this first element, such that his requested fees were properly denied.

            Hall v. Dept. of Motor Vehicles (DMV), Case No. D072278 (4^th Dist., Div. 1 July 20, 2018) (unpublished) involved a situation where a person accused of a DUI lost a license revocation hearing, but eventually was granted a new hearing before a different DMV hearing officer because the DMV officer revoking his license pled guilty to taking bribes from attorneys in unrelated cases in exchange for unlawfully issuing temporary driver’s licenses to persons charged with DUIs. However, it was clear that plaintiff’s goal was to obtain reinstatement of his license, something which has not occurred. After some trial and appellate work to shore up his right to a new DMV hearing, plaintiff moved to recover $145,044 in private attorney general fees (a lodestar plus a 2.0 positive multiplier).   He also sought to obtain $7,500 under Government Code section 800, which allows for a fee award not to exceed this sum where a prevailing complainant showed administrative action was arbitrary or capricious in nature with respect to a public entity or public officer. The trial judge denied the fee request, finding that plaintiff was not successful and did not prevail.

            The 4/1 DCA affirmed. There are two tests for gauging whether a litigant prevailed under section 1021.5: the primary litigation objective test and the “before and after” test.

            Plaintiff did not satisfy either of these tests. His primary litigation objective was to obtain reinstatement of his driver’s license, but that never happened. On a “before and after” analysis, his license was suspended for refusing to take a blood test and that stood on an “afterwards” basis with plaintiff only obtaining a remand to the DMV.

            As far as Government Code section 800 was concerned, plaintiff did not “prevail” under that statute just as he was not “successful” under CCP § 1021.5.