Private Attorney General: Unincorporated Association In Election Contest Challenge Was A De Facto Intervenor With Standing To Seek Section 1021.5 Fees As A Successful Party

Fifth District Enunciates Test For Unincorporated Associations.

            In Vosburg v. County of Fresno, Case No. F078081 (5^th Dist. Sept. 9, 2020) (partially published; fees standing issue published), an unincorporated association representing mental patients in a representative capacity sought to recover $44,218.13 in attorney’s fees under Code of Civil Procedure section 1021, California’s private attorney general fee-shifting statute.  The association was not granted formal intervention, but it was allowed to participate in an election contest challenge, providing evidence and legal arguments which were ultimately successful along with participation by other parties to the dispute.  The trial judge denied the fees motion, principally on standing grounds that association was not a “party” entitled to fees.

            The Fifth District reversed and remanded, in an opinion authored by Justice Franson.

            It found that the association was a de facto intervenor, not just an amicus curiae participant.  In doing so, it established this test for an unincorporated association being eligible for fees under section 1021.5:  “we conclude an unincorporated association has standing to appear in an election contest as a representative of its members if (1) its members live in the area affected by the outcome of the election, (2) its members would suffer injury from an adverse outcome in the election contest, and (3) the questions involved were of a public nature.”  That test was satisfied under the circumstances, although the fee denial was remanded to make sure association met other elements of the 1021.5 statute.

            Association also requested fees for prevailing on appeal.  Some of that depended on the remand conclusions, but the Fifth District did indicate there was an independent basis for granting appellate fees—association generated a published opinion such that this could be a separate basis for a fee award.  So, in the end, all was remanded, but de facto intervenor jurisprudence obtained another opinion in the evolving case law on this issue—which, like a river, depends on the decisions decided by courts on a daily basis.