Private Attorney General: Proposition 65 Plaintiff Gets A Redo On Fee Request After Trial Court Reduces Fee Award Based On Its Erroneous Conclusion That Her Litigation Achieved Limited Success.

Plaintiff Was Completely Successful On Her Proposition 65 Claims And Objectives, But Trial Court Improperly Valued Significance Of Plaintiff’s Success As Secondary To Litigating The Fee Award Because More Time Was Devoted To The Fee Award.

            In Davia v. Be Wicked, Case No. A163076 (1^st Dist., Div. 3 October 20, 2022) (unpublished), plaintiff and defendant entered into a consent judgment related to Proposition 65 violations – the Safe Drinking Water and Toxic Enforcement Act of 1986 (Health & Saf. Code, § 25249.5 et seq.).  Plaintiff then moved for Code Civ. Proc., § 1021.5 fees.  Although finding plaintiff was entitled to fees under Section 1021.5, the trial court reduced her request by 60 percent and denied altogether the fees incurred for litigating the fee award – awarding her only $47,293.75 of the $120,764.96 in fees and $2,334.66 in costs she sought.  The trial court reasoned that the parties had reached an agreement regarding the Prop 65 issues early on, but litigation over the attorney fees caused plaintiff to incur fees that were out of line for the action, and additionally found hours claimed by plaintiff’s counsel to be unreasonably high. 

            The 1/3 DCA reversed and remanded – agreeing with one of plaintiff’s arguments – that the trial court erred in concluding that her fee award should be reduced because her litigation achieved limited success.  Analyzing plaintiff’s litigation objectives with the objectives she actually achieved, the panel found that plaintiff was completely successful on her claims and objectives, and achieved excellent results.  It was improper to value the significance of plaintiff's success as secondary due to the amount of time spent litigating the attorney fees, and reduce her fee award on that basis.