Private Attorney General: $142,148 Fee Award Against Limited Partnership Property Owner And One Of Its Limited Partners Affirmed On Appeal Despite Petitioners’ Failure To Properly Notice Attorney General With Its First Amended Petition

Strict Adherence To Attorney General Notice Requirements Does Not Preclude Fee Awards, And Limited Partner Was Hit With Fees Because He Held Himself Out As Property Owner And Participated In Litigation As Real Party In Interest.

Gigantic oak tree on the Tejon Ranch, Kern county, Calif.; Indian man, woman and small girl in front of the tree. Carleton E. Watkins, photographer.  1888.  Library of Congress.

            Save the Agoura Cornell Knoll v. City of Agoura Hills, Case Nos. B292246 and B295112 (2d Dist., Div. 7 February 24, 2020) (unpublished), involves a CEQA (California Environmental Quality Act) action challenging the City’s approval of a proposed mixed-use commercial and residential development on vacant land – with the challenge centered around an Oak Tree Ordinance, tribal cultural resources, sensitive plant species, and insufficient mitigation measures.

            After succeeding on 2 out of 3 of their CEQA claims, Petitioners moved for post-judgment attorney fees pursuant to Code Civ. Proc. section 1021.5 – seeking $339,559 in fees which included a 2.0 lodestar multiplier.  The trial court granted the motion – without a multiplier – in the amount of $142,148, with 50% payable by the City and 50% payable by Agoura and Cornell Roads, LP (the property owner) and its limited partner, Doron Gelfand.  

            The LP and Gelfand unsuccessfully appealed the judgment and attorneys’ fees order –challenging the attorneys’ fees order on two grounds: (1) that Petitioners were not entitled to fees because they failed to provide notice of the CEQA action to the Attorney General pursuant to Public Resources Code section 21167.7 and Code Civ. Proc. section 388; and (2) that the trial court erred in concluding that Gelfand was personally liable for 50% of the fee award as Gelfand – who was one of 27 limited partners in the LP and the president of the LP’s general partner – merely acted as an officer of the general partner throughout the project’s development and approval process.

            As to the LP and Gelfand’s first ground, the 2/7 DCA found that failure to maintain strict compliance with Attorney General notice requirements did not necessarily preclude an award of section 1021.5 fees, and that such determination was within the discretion of the trial court.  Additionally, in this case, Petitioners timely provided notice to the Attorney General upon their initial filing.  Although their first amended petition – not materially different from the original petition – was not timely provided, this failure did not preclude the Attorney General from intervening in the case.  As the Attorney General had ample time to do so, but did not, private enforcement action was necessary.

            The LP and Gelfand’s second ground also went nowhere – with the 2/7 DCA finding it reasonable for the trial court to infer from the evidence that Gelfand was not acting solely in a representative capacity on behalf of the LP.  Gelfand was a real party in interest, was properly so named in the litigation, had pursued a direct interest in the project, and had actively participated in the litigation.  In the City’s Notice of Determination for its approval of the project, Gelfand was listed as the sole applicant, and Gelfand had identified himself as the owner of the property in a letter to the City.