Private Attorney General: Nonprofit Defendant/Petitioner Obtaining Certification Of Fresno’s Measure P, In A Prior Appellate Reversal, Was Erroneously Denied § 1021.5 Fees As Against City

Appellate Court Found That Private Attorney General Elements Were Met, Having Good Discussions Of The “Opposing Party,” Public Interest, And Interests of Justice Requirements.

            In City of Fresno v. Fresno Building Healthy Communities, et al., Case Nos. F084662/F084666 (5^th Dist. Dec. 26, 2023) (unpublished), a nonprofit defendant/petitioner Fresno Building Healthy Communities (FBHC) was denied a request for $362,835.75 in private attorney fees against the City of Fresno after it obtained an earlier appellate reversal of City’s failure to certify Measure P, Fresno’s Clean and Safe Neighborhoods Parks Tax Ordinance, because only a majority of voters needed to approve the measure and 52.17% of Fresno voters had voted for it. 

            The Fifth District reversed the fee denial.  Because the material facts were undisputed, a de novo review standard applied, which was a key determination which drove the reversal.

            FBHC was certainly a successful party.  The lower court erred in determining that the City was not an “opposing party,” given that City’s actions were responsible for a decision which harmed the public interests and gave rise to the litigation as well as distinguishing or discussing decisions on the issue (Nestarde, Animal Protection, and Wal-Mart Real Estate Business Trust).  The litigation clarified an important aspect of the constitutional right of initiative in California, so the public interest and significant benefit elements were satisfied.  (The appellate court rejected that City did not do anything to adversely affect the public interest, distinguishing Save Our Heritage Organisation v. City of San Diego, 11 Cal.App.5^th 154, 157-158 (2017).)  The Whitley cost/benefit analysis favored FBHC, which sought to vindicate a nonpecuniary interest and paid their attorneys over $250,000 to do so.  Because there was no financial recovery, the issue of whether the fees should be paid out of a common fund or the general municipal fisc was not of concern.  So, the matter returned to the lower court to determine the amount of fees which should be awarded to FBHC and against the City.