Private Attorney General: Plaintiffs’ Achievement Of Successfully Setting Aside EIR and Project Approvals Was Significant Enough, Even With Appellate Court’s Prior Limited Reversal, To Affirm Substantial 1021.5 Fee Award Without Remand

$765,402.60 In Fees And $36,218.95 In Costs Were Affirmed, With No Remand Needed.

            Plaintiffs achieving even limited success in setting aside EIR and project approvals can, and often do, obtain significant private attorney general awards, which are usually borne by the developer (because the developer has agreed to indemnify the involved government entity even if the award is entered jointly against that entity).  That happened in Elfin Forest Harmony Grove Town Council v. County of San Diego, Case No. D079222 (4^th Dist., Div. 1 Aug. 18, 2022) (unpublished), where a substantial fee award was affirmed despite the appellate court reversing some of plaintiffs’ success in a prior appeal; however, the win was significant enough for the appellate court to gauge that a trial judge on remand would not have altered the fee award.

            What happened in this one was that plaintiffs won greenhouse gas, fire, safety, air quality, and affordable housing issues in successfully setting aside EIR and project approvals for the County’s development project.  Based on this success, the lower court awarded plaintiffs $765,402.60 in CCP § 1021.5 fees and $36,218.95 in costs (albeit denying a 1.5 multiplier request).  However, on appeal, the appellate court in an earlier opinion scaled back the success to the greenhouse gas and affordable housing/general plan inconsistency argument victories.  County argued that the fee award had to be reversed and remanded based on the limited reversal later by 4/1 DCA.  The appellate court disagreed.  The limited reversal rule does not automatically mean a fee award falls if the appellate court believes that the success achieved was significant so that it could gauge the lower court would not change its original award.  Here, the appellate court believed that the setting aside of the EIR and project approvals was a significant achievement of litigation objectives by plaintiffs such that the original award should stand, with it being in an equipoised position with the lower court to gauge plaintiffs’ success.