Private Attorney General: Denial Of Fee Award Based On Significant Benefit Prong Was Erroneous As A Matter Of Law

Plaintiff Was Entitled To A 1021.5 Award, But Amount Will Be Determined On Remand.

            In an earlier appeal, plaintiff had obtained a published opinion reversing her denial of a petition seeking public disability retirement benefits based on symptoms caused by her office environment, involving interpretation of provisions under the Public Employees’ Retirement Law (PERL).  Based on that victory, plaintiff sought private attorney general fees of $812,000, a 3 times positive multiplier to a $270,820 lodestar amount.  The trial court denied the fee request because it did not view that a significant benefit was conferred outside of one to plaintiff alone, prompting an appeal.

            The appeal was successful in McCormick v. CalPERS, Case No. A164672 (1^st Dist., Div. 1 Apr. 25, 2023) (published).  Although noting that a published decision alone or vindication of an important right alone does not qualify a litigant for CCP § 1021.5 fees, the appellate court’s prior opinion did create a benefit for a class of persons who could replicate plaintiff’s symptoms and involved a significant interpretation of PERL discrimination provisions.  With that said, because plaintiff was entitled to a fee recovery, the appellate panel remanded and expressed no view on what amount of the fees which were appropriate.  That determination would be made by the lower court on remand.