Private Attorney General: $32,496.75 CCP § 1021.5 Fee Request Against County Clerk And Real Party In Interest (RIP) Properly Denied Because They Were Not “Opposing Parties” And No Private Enforcement Necessity Was Present

A Dissenting Justice Believed RIP Was An “Opposing Party,” And Would Have Remanded To The Lower Court To Assess If Other Elements Of Section 1021.5 Were Satisfied.

            In Holloway v. Wylie, Case No. H050376 (6^th Dist. Sept. 12, 2023) (unpublished), petitioner prevailed on an unopposed mandate petition to delete from a voter information guide the identification of a county supervisor as a proponent of a school district bond measure.  Petitioner moved to recover private attorney general fees against the respondent county clerk and RIP, with the lower court determining that the fee motion was untimely and that county clerk was an “an opposing party” under section 1021.5.  In a prior appeal, the Sixth District found the fee motion timely but also concluded county clerk was simply a ministerial actor required to be named under the Elections Code so that the clerk was not an “opposing party.”  On remand, petitioner renewed the fee motion against RIP, requesting $32,496.75 in fees.  The lower court again denied the request, including that RIP, too, was not “an opposing party.”

            The Sixth District in its newest opinion affirmed, but on a 2-1 basis due to a dissent.  The majority concluded that RIP was not an “opposing party” based on a litigation pragmatic test set forth in McGuigan v. City of San Diego, 183 Cal.App.4^th 610, 625 (2010).   RIP never opposed the mandate writ petition, and there was conflicting declaration testimony but with RIP’s testimony showing there was no prelitigation objection to the voter information deletion.  But the majority went further.  It also found that there was no necessity for private enforcement, as an alternative ground, based on tacit findings in the minute order. 

            Acting Presiding Justice Bamattre-Manoukian dissented.  She found RIP was an “opposing party” because he had too much skin in the game—a direct interest in the litigation.  However, because of her belief that only the “opposing party” ground was the basis for the lower court’s decision, she would have remanded to have the lower court consider other factors necessary to justify section 1021.5 fee recovery.