Private Attorney General: Defendant Who Provided Appellate Amicus In A Proposition 65 Case Finding No Violations Properly Was Denied CCP § 1021.5 Fee Against A Plaintiff Dismissing The Case After Issuance Of The Earlier Appellate Opinion

Reason Was That Defendant’s Avoidance Of Civil Penalties And The Costs Of Warnings Outweighed Any Important Right, Which Was Coincidental To Its Economic Interests.

               In Environmental Health Advocates, Inc. v. Bio Hazard, Inc., Case No. A168332 (1^st Dist., Div. 1 Aug. 12, 2024) (unpublished), a plaintiff dismissed a Proposition 65 case against defendant after an earlier appellate ruling in a different case (Sream)—where defendant filed an amicus brief—put the kibosh on plaintiff’s position such that it dismissed the pending lawsuit.  Defendant moved for section 1021.5 fees totaling $73,931, a request which was denied.  The 1/1 DCA affirmed.  Although it was successful, defendant did not vindicate an important right, because that was coincidental to its own economic interests of avoiding substantial civil penalties and of avoiding the costs of product warnings—finding “on fours” the reasoning in an earlier First District opinion on private attorney general fees, DiPirro v. Bondo Corp., 153 Cal.App.4^th 150, 196 (2007).  As to the argument about vindicating an important right through the amicus briefing, the Court of Appeal concluded that (1) the brief was only 8 pages long, mainly pointing the panel to the Lee opinion (with two of the justices on Lee also on the Sream panel), and (2) it was inferable that the justices on Sream where well aware of Lee anyway.