Private Attorney General: $93,000 In Appeal Fees Under CCP § 1021.5 Affirmed For Work On Prior Appeal Where Partial Reversal Resulted In Three Other EIR Deficiencies Identified For Correction By Orange County

Trial Judge Reduced Fee Request By About 20%.

            In on-going CEQA litigation between nonprofit citizen groups and a residential developer over a Yorba Linda project, the lower court initially found merit only on a greenhouse emission issue out of a myriad of EIR challenges in a proceeding involving Orange County and the developer.  However, in a prior appeal, our local Santa Ana appellate court found that three other issues—project description, fire hazards, and water supply—needed to be better addressed by the EIR.  (Incidentally, the fire hazards ruling came right after some horrendous Southern California fires.)  For partially prevailing in the prior appeal (because developer won on some issues also), nonprofit citizen groups requested $116,217.50 in appellate fees.  The trial judge awarded about $93,000, a 20% reduction.  Developer appealed.

            The 4/3 DCA, in an opinion authored by Justice Thompson, affirmed in Protect Our Homes and Hills v. County of Orange, Case No. G056618 (4^th Dist., Div. 3 Aug. 12, 2019) (unpublished).

            Developer first argued that the appellate court ordered each side to bear their own costs in the appeal such that no fee recovery was justified.  However, that did not retard a fee award given that fees and costs are treated separately in this regard even if the appellate court believes justice is served by having each side bear their own costs.  (Butler-Rupp v. Lourdeaux, 154 Cal.App.4^th 918, 927 (2007).)

            Next up was the argument that no significant benefit to the public was accomplished through the partial reversal.  Wrong, because reanalysis of the three issues were important, given that a lot of EIR restudies further the objectives of CEQA.

            The third challenge was that the nonprofit citizen groups did not demonstrate that they could not bear the fee expense under the Whitley costs/benefits analysis.  The problem here is that the groups indicated they had no financial stake in the litigation, with the lack of rebuttal by developer ending the inquiry into this argument.

            Last up was that fees should have been reduced more for the nonprofit citizen group’s lack of success, parsing out work on unsuccessful claims.  The appellate court determined that this is a discretionary exercise altogether, with none or not all of the time on unsuccessful claims needing to be excluded.  After all, there was a 20% reduction off of the fee request.

            BLOG OBSERVATION—This last issue on partial success is something which needs to be visited by the Legislature.  Before he left office, Jerry Brown said CEQA reform was the “Lord’s work.”  Well, there is more to be done here.  Right now, trial judges have total discretion to do what they want when a partial success argument is raised, with a lot of decisions saying that unsuccessful claims sometimes are brought in CEQA cases and affirming full CEQA requested fees even though there was limited success.  This case involved around 30 issues, with the noncitizen groups only winning four—garnering substantial trial and appellate court fees when the partial success and other challenges were made but rejected for the most part.  Some reform is needed on allowing fees on unsuccessful CEQA claims, like this case where many claims were either abandoned or were feeble in nature.  Otherwise, “kitchen sink” CEQA cases will abound, with prospect of large attorney’s fees untethered to actual success.