CALIFORNIA ATTORNEY'S FEES

Private Attorney General: Where Petitioner Had Limited Success And Lost Its Primary Litigation Objectives In CEQA Action, Lower Court Did Not Err In Reducing Requested Fees By About 90% And Denying A Positive Multiplier Request For One Firm’s Work

$37,346.30 Was The Fee Award From The $225,683 Lodestar Request Plus 1.5 Multiplier For One Component Of The Fee Request.

            Limited success and excessive fee requests, even in a CEQA context, confer considerable discretion on a lower court to fashion an appropriate fee award under California’s private attorney general statute.  These factors led to about a 90% reduction of a partially prevailing petitioner’s fee request in Friends of Muir Woods Park v. The County of Marin, Case No. A166427 (1^st Dist., Div. 5 Sept. 20, 2022) (unpublished).

            There, Marin County approved real party in interest’s 3-lot subdivision plan by adopting a mitigated negative declaration, with petitioner challenging that action under CEQA and the Subdivision Map Act.  Petitioner mainly wanted an EIR to be conducted and wanted reassessment of the project for 12 homes that potentially could be built on the sites rather than the two new homes which were approved, as well as raised several other excavation/fill, environmental, human safety, local plan, and Subdivision Map Act violation issues.  The lower court granted and denied, in part, the petition, finding that the county had not violated the Map Act, that County’s initial study had failed to satisfy CEQA’s informational requirements with respect to three discrete issues, that the county was not required to conduct an EIR, that there was no substantial evidence of potential environmental impacts, and that the county was not obligated to analyze the impacts of a 12-house project.  The writ did not direct the county to exercise its discretion in any way and did not direct the preparation of an EIR.

            Petitioner moved to recover CCP § 1021.5 lodestar of fees of $225,683 plus a positive 1.5 multiplier on a $39,889 component of the request.  The lower court, based principally on petitioner’s limited success and excessive work, awarded $37,346.30, consisting of $16,420 for some “fees on fees” and $20,926.30 (10% of the remaining lodestar request after backing out the fees on fees).  Obviously unhappy, petitioner appealed.

            The 1/5 DCA affirmed.  Although the general rule is that fee awards should be fully compensatory, the appellate court agreed that the lower court properly reduced the fee request for limited success and uninflated billings.  Even where a plaintiff’s successful and unsuccessful CEQA claims are interrelated, a trial judge may reduce the fees if the plaintiff achieves only minimal success (Save Our Uniquely Rural Community Environment v. County of San Bernardino, 235 Cal.App.4^th 1179, 1185-1186 (2015)), which was appropriate here given that petitioner did not achieve its main objectives of getting an EIR mandated or getting the project analyzed under the 12-house scenario.  Further, the use of a substantial negative multiplier is warranted where the appellate record demonstrated the plaintiff attorneys inflated their billings in an uncomplicated CEQA case and succeeded on only one out of 10 arguments (SOURCE, 235 Cal.App.4^th at 1182-1187, 1189-1190), with time spent on administrative record, legal research, and other work in this case properly found excessive by the lower court under an abuse of discretion standard.  Denial of the positive multiplier request was not erroneous because the factors justifying a multiplier were built into the trial court’s lodestar calculation, such that a “double dip” was inappropriate.

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.   

Private Attorney General: Denial of CCP § 1021.5 Fees To Prevailing Short-Term Rental Plaintiff Justified On Appeal

Plaintiff Did Not Satisfy The Financial Incentive Statute Standards—Too Much Skin In The Game.

            In Keen v. City of Manhattan Beach, Case No. B314744 (2d Dist., Div. 8 Aug. 15, 2023) (unpublished), plaintiff won a short-term rental dispute against the Manhattan Beach, but lost a remand request for attorney’s fees under the private attorney general statute.  That fee denial determination was affirmed on appeal.  The reason was the math, basically—plaintiff would net $90,000 from his lawsuit such that he should not get 1021.5 fees.  That math was good enough to sustain the denial of fees on appeal.  Arithmetic yet again prevailed.

Private Attorney General: $38,733.75 Fee Award Under CCP § 1021.5 To Mobile Home Park HOA And Against Mobile Home Park Owner Was Affirmed On Appeal

HOA Was Dismissed On County’s Demurrer Such That It Was Successful, Vindicating A Broader Interest Of Mobile Home Park Residents Throughout The County Because They Needed To Be Part Of The Mobile Park Owner’s Judicial Writ Proceeding Case.

            In Pinto Lake M.H.P., LLC v. County of Santa Cruz, Case No. H050374 (6^th Dist. July 28, 2023) (unpublished), mobile park owner Pinto Lake tried to increase rents for mobile park residents, with an administrative hearing officer denying the requested 47% increase.  Pinto Lake filed a combined administrative mandamus/declaratory and injunctive relief suit naming the County and hearing officer as respondents.  County demurred on the basis that the mobile park residents were necessary parties to the judicial proceeding, but in an earlier opinion the Sixth District remanded to the lower court to determine if they were indispensable parties such that the matter could not proceed.   Pinto Lake, after conceding that a 90-day statute of limitations had lapsed to preclude making residents parties to the lawsuit, Pinto Lake tried to amend its pleading to name the Mobile Home Park Homeowners’ Association (HOA) as a defendant.  HOA demurred and, at a further hearing on County’s original demurrer, the lower court determined the residents were indispensable parties and the HOA could not be added as a party because it exceeded the scope of the Sixth District’s limited remand.

            HOA moved for attorney’s fees of $38,733.55 against Pinto Lake, with the lower court granting them under the private attorney general statute (with no multiplier).

            The Sixth District affirmed the fee award to HOA.  HOA was a successful party because it participated in the litigation to extricate itself as a party, no matter how it procedurally ensued.  It enforced an important public right for a large group of persons, namely, mobile home park residents throughout Santa Cruz, given the lower court ruling that those residents were indispensable parties to the subsequent judicial proceeding and had a right to participate in the proceeding.  The financial burden on the HOA was present because the HOA’s attorneys took the matter on with no prospect of gaining a financial recovery and because most mobile park residents had none or little resources to spare to fund litigation by the HOA. 

Costs, Private Attorney General: In Case Involving Extension Of 241 Toll Road Near San Clemente, 4/2 DCA Affirms Denial Of 1021.5 Fees To HOA, Reverses And Remands Denial Of Fees To Environmental Parties, And Affirms Award Of Costs Against HOA

Lots Of Moving Parts Here, But The Remand For Environmental Parties Is Not An Automatic Endorsement Of Receiving 1021.5 Fees.

            City of San Clemente v. Department of Transportation et al., Case No. E077153 (4^th Dist., Div. 2 June 29, 2023) (published) arose out of the Corridor Agency’s approved extension of State Route 241 (known as the “toll road” to Orange County residents) near San Clemente, which resulted in lawsuits by Environmental Parties and an HOA, respectively, to protect environmental interests and homeowners’ interest in not having the extension too close.  Environmental Parties were able to get the Corridor Agency to agree to a settlement agreement by which an environmental “avoidance area” was created.  HOA’s suit challenged the settlement agreement as being ultra vires, but it dismissed its case after suffering some key losses. Eventually, Corridor Agency proceeded with an option which steered clear of the “avoidance area” and HOA.

            This is where the attorney’s fees/costs motion frenzy began, with fee requests brought under the private attorney general statute (CCP § 1021.5) and costs presented under the routine cost statute.  HOA moved for about $1.85 million in fees on a catalyst theory against Corridor Agency; Environmental Parties moved for about $1.139 million in fees against HOA; and Corridor Agency and Environmental Parties moved for costs totaling about $190,000 against HOA.

            The lower court denied the fee requests, but it awarded reduced costs of about $102,000 against the HOA.  Environmental Parties appealed the fee denial, and HOA cross appealed in relation to the fee denial and cost awards.  The 4/2 DCA, in a lengthy opinion, affirmed the HOA fees denial and costs awards, but reversed and remanded with respect to the fee denial involving the Environmental Parties.

            Denial of HOA’s fee request focused on whether it was successful for 1021.5 catalyst purposes.  The problem for HOA was that the Corridor Agency’s decision to “steer clear” was motivated by factors other than HOA’s litigation.  Beyond that, HOA’s primary litigation objective was to invalidate the settlement agreement, and they were not successful given the dismissal of its suit.

            Costs against the HOA were proper because its dismissal made costs recovery a “matter of right” as to Corridor Agency and the Environmental Parties.

            That left the Environmental Parties’ appeal of the denial of their fee request.  The 4/2 DCA decided that a narrow 1021.5 exception articulated in its Joshua S. case did not apply because Environmental Parties did vindicate public interests through the “avoidance area” settlement such that HOA’s challenge to that settlement would have been detrimental to broader public environmental interests—finding persuasive the reasoning in Wal-Mart Real Estate Business Trust v. City Council of San Marcos, 132 Cal.App.4^th 614 (2005) to the contrary.  However, the reversal and remand were not all good news for Environmental Parties.   The appellate court expressly instructed the lower court to explore if those parties’ prior enforcement actions were necessary (another 1021.5 element).  I guess we shall see if there are follow-up decisions on this remaining fee issue.

Private Attorney General: One Intervenor Garners $143,555 In CCP § 1021.5 Fees, While Another Intervenor Not Having A Direct Interest Properly Denied 1021.5 Fee Recovery

First Intervenor’s Fee Award, However, Was One With A 75% Lodestar Reduction.

            In City of Huntington Beach v. State of California, Case No. G061184 (4^th Dist., Div. 3 June 14, 2023) (unpublished), Huntington Beach lost a constitutional challenge in a mandamus proceeding with the State of California over a series of laws affecting a charter city’s, like Huntington Beach’s, ability to control its housing.  The lower court allowed the intervention by the Kennedy Commission (Kennedy) and the California Coalition for Rural Housing and Housing California (Housing), allowing Kennedy’s intervention without conditions but granting Housing’s intervention with reservations/some conditions as far as what it and Kennedy could file in the proceeding.  City lost its challenges, with the lower court finding that Kennedy advanced some significant legal theories, had a direct interest in the case, and advanced the ball as far as the final result which was achieved—awarding Kennedy $143,555 in CCP § 1021.5 fees (a 75% reduction from the requested $462,587 lodestar after showing displeasure about the number of hours, overstaffing, duplication, and unwarranted inefficiencies).  However, the trial judge found Housing was not entitled to recover 1021.5 fees because it did not have a direct interest in the case.  City appealed Kennedy’s fee award, and Housing cross-appealed from the fee denial order.

            The fee orders were affirmed on appeal, in an opinion authored by Acting Presiding Justice Bedsworth.

            Kennedy met the 1021.5 requirements because it was a non-conditioned intervenor which helped the trial judge come to a resolution of the case, with the lower court’s position on the contribution of Kennedy reviewed under a deferential abuse of discretion standard which was not going to yield to a different result on appeal.  The 75% reduction in the Kennedy request showed that the lower court was attuned to what it needed to do under a lodestar analysis. 

            With respect to Housing, the denial of its fees was warranted because that intervenor admitted that it had a state-wide, rather than local, interest such that its interest was attenuated.  (Connerly v. State Personnel Bd., 37 Cal.4^th 1169, 1181. 1183 (2006).)

Private Attorney General: CCP § 1021.5 Award To Minor’s Parents For Obtaining Removal From Civil Abuse Central Index Reversed As A Matter Of Law

The Matter Only Really Impacted The Parents Themselves, Not A Larger Class Of Persons.

            In Ford v. Stanislaus County, Case No. F083828/F084205 (5^th Dist. June 2, 2023) (unpublished), minor’s parents obtained writ relief by which their names were removed from the Civil Abuse Central Index after they were found not to be the perpetrator of injuries in a juvenile dependency proceeding.  The court issuing the writ also awarded parents $101,397 in fees under the private attorney general statute, CCP § 1021, triggering an appeal by Stanislaus County.

            The Fifth District reversed as a matter of law, because the result did not confer a significant benefit on a large class of persons (one of the elements of 1021.5).  The real impact was on the parents themselves, with no evidence that the county was engaging in systematic abuse.  The fee award went POOF! on appeal.

Civil Rights, Private Attorney General: On Remand From The California Supreme Court, Court Of Appeal Denies Attorney’s Fees To Prevailing Party Under The Political Reform Act And Under A Separate Private Attorney General Theory

Plaintiff’s Suit Was Not Frivolous Under Political Reform Act, With Defendants Not Showing An Important Right/Significant Benefit Were Vindicated Under CCP § 1021.5.

            In Travis v. Brand, Case No. B298104 (2d Dist., Div. 8 May 19, 2023) (published), the 2/8 DCA had to consider whether prevailing defendants were entitled to attorney’s fees under the Political Reform Act and under CCP § 1021.5 after the California Supreme Court decided that prevailing defendants are only entitled to Political Reform Act fee recovery if they can prove plaintiff’s case lacked foundation and then determine whether the trial court properly decided that fees were warranted under the private attorney general doctrine.  Defendants were not successful in convincing the appellate court that a fee award was proper under either fee entitlement anchor.

            With respect to the Political Reform Act entitlement basis, the appellate court examined the entire record and concluded that plaintiff’s suit had potential merit from the onset.

            That swung things to the private attorney general justification.  This ground did not prevail on appeal.   Defendants did not show that they satisfied the important right and substantial benefit prongs of section 1021.5.  Simply because an election law issue was involved did not per se give an imprimatur on private attorney general fees, given that defendants failed to show free speech rights were involved.  Instead, only technical issues between the parties themselves were involved, issues which did not change any of the merit issues or focus for the electorate.  Given this pragmatic assessment by the appellate court, two prongs of section 1021.5 were not satisfied so as to justify denial of private attorney general fees.

Private Attorney General: $3,531,201.10 Attorney’s Fees Award To Plaintiff Successfully Being A Catalyst On Low-Income Housing Issue Was Affirmed On Appeal

Decision Shows The Proper Way For A Plaintiff To Show It Was A Catalyst And To Substantiate Its Fee Request With Great Detail Before The Trial Judge.

            For public interest and governmental lawyers, The Kennedy Comm’n v. City of Huntington Beach, Case Nos. E078403 et al. (4^th Dist., Div. 2 May 11, 2023) (published) is a must read in the CCP § 1021.5 private attorney general area on catalyst and fee reasonableness issues.  The opinion is 43 pages long, but we will try to distill it quite nicely below. 

            The trial judge, after some prior determinations leading to prior appeals, ultimately awarded $3,531,201.10 to plaintiff (the full ask and inclusive of a positive 1.4 multiplier), with plaintiff claiming to be a catalyst for purposes of Huntington Beach making changes to accommodate low-income housing under California’s Housing Element Law.  City’s problem on appeal was that it could not blunt that plaintiff did vindicate an important issue (public housing) and that it was a catalyst for change based on some shifting legislative developments.  The factual determinations on being a catalyst were reviewed deferentially.  As to reasonableness of fees, plaintiff submitted detailed declarations from working attorneys, detailed billing statements, and a civil rights expert which were not matched in quality by the City’s opposition submissions.  That lead to an affirmance of the “full ask,” not to mention that the 1.4 multiplier was warranted due to the complexity of the matter and with the case being litigated by volunteer attorneys in some major respects who had no expectancy of a fee recovery.  Fee award affirmed.

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.

Private Attorney General: $239,479.65 Full Lodestar Fee Award Under CCP § 1021.5 Was Reversed As A Matter Of Law On Appeal

Petitioner Had An Enormous Financial Exposure Which Eclipsed Its Financial Costs In The Case And Related Proposition 65 Litigation.

            Under CCP § 1021.5, a litigant seeking fees under this statute has the burden of satisfying all the predicate requirements.  This burden of proof must be satisfied; and, if not, a fee award can get reversed as a matter of law on appeal, as it was in Valley Water Management Co. v. Superior Court (Cal. Regional Water Quality Control Board, Central Valley), Case No. F083744 (5^th Dist. Mar. 28, 2023) (unpublished).

            What happened in this one is that Valley Water was facing a Proposition 65 lawsuit and decided to challenge the Water Board’s blanket designation of some groundwater near its oil facility as being acceptable for municipal or agricultural issue, getting some successful relief in a mandamus action and parlaying that into a settlement of the Proposition 65 case.  (As an interesting aside, the Proposition 65 settlement was $645,000, $481,000 which represented reimbursement of plaintiffs’ fees, experts’ fees, and costs.)  Valley Water then moved for 1021.5 fees against the Water Board, requesting a lodestar of $239,479.65 plus a 1.5 positive multiplier.  The lower court awarded Valley Water the full $239,479.65 lodestar request.

            That fee award was reversed as a matter of law on appeal—or, put another way, went POOF!  The problem was that Valley Water could not hurdle the Whitley financial cost/benefit analysis.  (Whitley is our Leading Case No. 14.)  Valley Water faced tremendous exposure for the groundwater classification in both the Proposition 65 litigation and under a Water Board cease-and-desist looming dispute, with its success in the mandamus action staunching its exposure in the Proposition 65 case.  Given this financial assessment, Valley Water did not surmount the Whitley financial factor. 

Costs, Prevailing Party, Private Attorney General, Section 998, Trespass: Prevailing Defendant/Cross-Complainant Obtains Attorney’s Fees Under Trespass Fee Shifting Statute Despite Receiving Nominal Damages And Also Receives Routine Costs

Losing Plaintiff/Cross-Defendant Denied Private Attorney General Fee Request In Opinion With Several Cross-Over Issues. 

            Direct Action Everywhere SF Bay Area etc. v. Diestel Turkey Ranch, Case No. A162702 (1^st Dist., Div. 2 Mar. 1, 2023) (unpublished) is an opinion with many cross-over issues as identified in our main title to this post.

            In this one, plaintiff sued defendant for alleged false advertising and unfair competition violations, with defendant cross-complaining against plaintiff, as a cross-defendant, for trespass, conversion, and unfair competition.  Defendant won on both suits after an 8-day bench trial.  The lower court also determined that defendant was the prevailing party, awarding defendant/cross-complainant routine costs of $68,734.37 minus $4,950 in mediator expenses and $72,848.25 in attorney’s fees under CCP § 1021.9 (the trespass fee-shifting statute).  The lower court denied plaintiff’s request for $1,541,000 in private attorney general fees under CCP § 1021.5. 

            On appeal, the costs and fee rulings were all affirmed.  Plaintiff argued that nominal damages will not support a trespass fees award (citing treatises to that effect), but the appellate court disagreed:  “section 1021.9 does not delineate between the type of damages awarded in a trespass action, but rather states that a party ‘shall be’ entitled to its fees and costs when it prevails in an action for damages to its personal or real property resulting from trespass.”  In this case, the lower court determined that plaintiff trespassed six times resulting in the loss of two turkeys such that tangible damages did occur, awarding $8.00 in damages and a permanent injunction.  That sufficed for 1021.9 purposes:  cross-complainant suffered tangible harm even though cross-complainant failed to adduce proof of the trespass loss.  Plaintiff argued fees were unwarranted because this could have been brought as a small claims or a limited case (citing Chavez, our Leading Case #13), but that argument failed because a case praying for a permanent injunction must be brought as an unlimited matter.  Plaintiff ended by contending that cross-complainant did not beat its CCP § 998 offer, but that lacked merit because cross-complainant’s pre-offer costs well exceeded the offer on the cross-complaint and plaintiff’s 998 offer only offered a temporal permanent injunction versus the unlimited permanent injunction obtained by cross-complainant.

            With respect to plaintiff’s 1021.5 request, that was dispatched because plaintiff was not successful and was no catalyst for any changes.

            On the routine costs side, the lower court’s rulings were correct, reminding litigants and practitioners that court reporter costs are recoverable (even if the transcript costs are not) and deposition costs for witnesses not testifying at trial are allowable in the lower court’s discretion.

Private Attorney General: Plaintiff Winning Short-Term Rental Ban Dispute In California Coastal Properties Was Properly Denied CCP § 1021.5 Fees

The Reason Was The Failure To Satisfy Whitley Financial Stake Aspect Of 1021.5.

            If you know our website, go to Leading Cases, and look under Whitley (No. 14).  This is a key case for analyzing financial costs/benefits to satisfy one prong under California’s private attorney general statute (CCP § 1021.5).  Although a plaintiff won in Kracke v. City of Santa Barbara, Case No. B316993 (2d Dist., Div. 6 Jan. 12, 2023) (unpublished), he thought his victory would get fees.  He was wrong because his proof of financial stake in the litigation was deficient.

            Plaintiff did prevail on a short-term vacation rental ban dispute in California’s coastal zone, primarily Santa Barbara.  He initially was denied 1021.5 fees for failure to demonstrate his personal stake in the litigation, but he then made a renewed motion showing he incurred $600,000 in fees and only “netted” $41,693 from the coastal properties in question.  The lower court considered the renewed request but again denied fees to plaintiff.

            The lower court denied because it was expecting to see some historical earnings for plaintiff in properties both before and after the ban.  That evidence was not proffered, such that it no abuse of discretion in denying fees altogether. 

            This case does tell plaintiffs seeking 1021.5 fees to be attuned to making some very specific showings of financial stake under Whitley—skimpy showings can end up in the result here, much to the chagrin of the prevailing plaintiff.

Private Attorney General, Section 998: Plaintiff Properly Denied CCP 1021.5 Fees And $700,000 Section 998 Fees In Favor Of Some Defendants Reversed

No Public Benefit Conferred By Misleading Proposition 65 Temporary Warnings, And 998 Offer Releases Were Overbroad.

     In Council for Education and Research on Toxics v. Starbucks Corporation, Case Nos. B309227 et al. (2d Dist., Div. 4 Oct. 26, 2022) (published), defendants properly won a summary judgment in a Proposition 65 case when new regulations debunked the idea that coffee roasting presented health risks which had to be disclosed.  The trial court denied plaintiff’s request for private attorney fees because any temporary warnings did not confer a public benefit given that the warnings were misleading and unnecessarily. The lower court also granted some of the defendants about $700,000 in attorney’s fees based on unaccepted CCP 998 offers.  The appellate court affirmed the fee denial, but reversed the 998 fees awards because the requested releases were overbroad in seeking release of claims over and beyond those which were the subject of the lawsuit (relying on the Ignacio and Chen decisions in so doing).

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.

Private Attorney General: Plaintiffs’ Achievement Of Successfully Setting Aside EIR and Project Approvals Was Significant Enough, Even With Appellate Court’s Prior Limited Reversal, To Affirm Substantial 1021.5 Fee Award Without Remand

$765,402.60 In Fees And $36,218.95 In Costs Were Affirmed, With No Remand Needed.

            Plaintiffs achieving even limited success in setting aside EIR and project approvals can, and often do, obtain significant private attorney general awards, which are usually borne by the developer (because the developer has agreed to indemnify the involved government entity even if the award is entered jointly against that entity).  That happened in Elfin Forest Harmony Grove Town Council v. County of San Diego, Case No. D079222 (4^th Dist., Div. 1 Aug. 18, 2022) (unpublished), where a substantial fee award was affirmed despite the appellate court reversing some of plaintiffs’ success in a prior appeal; however, the win was significant enough for the appellate court to gauge that a trial judge on remand would not have altered the fee award.

            What happened in this one was that plaintiffs won greenhouse gas, fire, safety, air quality, and affordable housing issues in successfully setting aside EIR and project approvals for the County’s development project.  Based on this success, the lower court awarded plaintiffs $765,402.60 in CCP § 1021.5 fees and $36,218.95 in costs (albeit denying a 1.5 multiplier request).  However, on appeal, the appellate court in an earlier opinion scaled back the success to the greenhouse gas and affordable housing/general plan inconsistency argument victories.  County argued that the fee award had to be reversed and remanded based on the limited reversal later by 4/1 DCA.  The appellate court disagreed.  The limited reversal rule does not automatically mean a fee award falls if the appellate court believes that the success achieved was significant so that it could gauge the lower court would not change its original award.  Here, the appellate court believed that the setting aside of the EIR and project approvals was a significant achievement of litigation objectives by plaintiffs such that the original award should stand, with it being in an equipoised position with the lower court to gauge plaintiffs’ success.   

Private Attorney General: $468,228.73 Fee Award To Sierra Club In CEQA Case Affirmed

.5 Multiplier Based On Contingency Factor Also Sustained.

            In Sierra Club v. County of San Diego, Case No. D079518 (4^th Dist., Div. 1 Aug. 17, 2022) (unpublished), the 4/1 DCA affirmed a $468,228.73 fees award to the Sierra Club under the private attorney general statute where a lower court vacated an EIR certification and approval for two developments, with a .5 positive multiplier being awarded.  The appellate court, as we bloggers see from the news, validated that carbon-offset mitigation measures need to be considered.  It also found this was not just a “tag along” to related proceedings and a positive multiplier was justified based on a contingency risk factor.

            BLOG OBSERVATION—Although she was not involved in this case, we note that 4/1 DCA Justice Judith L. Haller will be retiring from this appellate division after 28 years of service.  We wish her well. 

Private Attorney General: Homeowners Prevailing In Malibu District Assessment Validation Battle Properly Denied Over $2.4 Million In Requested Attorney’s Fees

Whitley Financial Analysis Adopted By Lower Court Sustained On Appeal.

            In Broad Beach Geologic Hazard Abatement Dist. v. 31506 Victoria Point LLC, Case Nos. 304699 et al. (2d Dist., Div. 4 filed Aug. 2, 2022; posted Aug. 3, 2022) (published), a group of Malibu homeowners successfully prevailed in an assessment validation proceeding against District under Proposition 218, a determination affirmed on appeal.  Certain homeowners then moved for attorney’s fees under California’s private attorney general statute, CCP § 1021.5, for fees totaling over $2.4 million.  The lower court denied those requests, triggering an appeal by certain homeowners.  The fee denial, too, was affirmed on appeal.

            The principal reason for affirmance was that the homeowners’ economic benefit in the litigation exceeds their litigation costs under the cost/benefit analysis of Conservatorship of Whitley, 50 Cal.4^th 1206 (2010) [our Leading Case #14].  The lower court used a formula in arriving at this determination, taking the 10-year benefit to the separate group of homeowners, discounting by 50%, and then comparing that discounted benefit number to the homeowners’ litigation costs.  The appellate court saw nothing wrong with this math, as well as rejected the argument that the possibility of a future assessment was enough to justify fee awards. 

            BLOG HAT TIP—Matthew Kanin, who has co-counseled several appeals with co-contributor Mike Hensley, won on the merits but lost the fee battle on appeal.  Hat tip just the same.

Private Attorney General: Where Plaintiff Did Vindicate Users Of Dangerous Condition Area But Obtained A $1.326 Million Damage Award, Cost/Benefit Analysis Supported Denial Of CCP § 1021.5 Fee Recovery

Case Was Not Unusual For Allowing A Fee Award Under Cases Which Did Allow Under Rare Circumstances Where A Benefit Exceeded Litigation Costs.

            In Williams v. County of Sonoma, Case No. A162966 (1^st Dist., Div. 5 July 27, 2022) (unpublished), plaintiff won $1.326 million in a jury verdict against County for a public property dangerous condition where, on a bicycle, she struck a pothole.  In a prior appeal, County argued that she assumed the risk, but the appellate court rejected that argument based on the particular facts of the case—a narrow decision, although published.  Plaintiff then filed to recover lodestar attorney’s fees of $112,710 against County under CCP § 1021.5.  The lower court denied them based on the reasoning that her costs/benefits in the litigation, given the substantial jury verdict (even if discounted by 50% as far as hindsight expectancy which did occur), did not fall within unusual cases warranting such an award.

            The 1/5 DCA affirmed.  The appellate court did a nice review of “unusual cases” warranting a 1021.5 award where litigant’s expected benefits exceeded its actual costs.  The problem is that plaintiff did not fall within these categories because the published decision was quite narrow, plaintiff was not seriously impecunious, and her judgment was of the type that could fund an attorney to litigate the matter.  [If you want to know the “unusual cases” distinguished, they are Los Angeles Police Protective League v. City of Los Angeles, 188 Cal.App.3d 1, 10 (1986); City of Oakland v. Oakland Police & Fire Retirement System, 29 Cal.App.5^th 688, 703, 708 (2018); and Beasley v. Wells Fargo Bank, 235 Cal.App.3d 1407, 1418 (1991).]

Lodestar, Private Attorney General, Reasonableness Of Fees: FEHA Fee Recovery To Plaintiff’s Attorney Affirmed As Far As Reductions But Remand Issued To Determine Reasonable Hourly Rate Based On Out-Of-Town Rates

Plaintiff’s FEHA Request Was Reduced Drastically, But The Award Likely Will Go Up Some When Out-Of-Town Rates Are Considered—Although The $700,000 Award Was Substantial.

            When you are doing appellate work on abuse of discretion issues, the primary issue may be whether the lower court used the correct legal principles as far as reaching its discretionary decision.  That principle was in play to lead to a limited remand on a fee recovery in Elizondo v. Dept. of Transportation, Case No. C088987 (3d Dist. July 22, 2022) (unpublished).

            In this one, FEHA plaintiff won a $605,000 jury verdict, with the trial court later awarding over $700,000 in attorney’s fees, inclusive of a 1.2 positive multiplier out of a $4 million request (we kid you not), and $117,488.60 in costs (with the costs award largely affirmed on appeal).  The thrust of plaintiff’s appeal was that more fees should be awarded, with the principal contention being that much higher out-of-town hourly rates should have been awarded by a Bay Area attorney versus much lower rates for San Joaquin County attorneys, given that the venue was San Joaquin County.

            The Third District affirmed the fee award, except to remand with a trial court exploration of higher out-of-town hourly rates.  The lower court awarded $350 per hour to plaintiff’s counsel even though Bay Area rates were more in the $825 per hour range.  What led to the reversal was a good evidentiary showing by plaintiff’s counsel that local attorneys in Stockton and Sacramento would not take the case such that local counsel rates were not germane, with the lower court not applying the correct legal principles on out-of-town rates once plaintiff made this evidentiary showing.  With that said, the matter was remanded to look at a higher out-of-town hourly rate, but that did not detract from affirmed conclusions that the lodestar fee request was inflated for lack of preparation by plaintiff’s counsel at some junctures of the litigation, billing for political activities, billing for travel to conferences which could have been attended telephonically instead, billing for ministerial tasks, billing for unrelated administrative proceedings not expressly allowable under FEHA (see K.I. v. Wagner, 225 Cal.App.4^th 1412, 1423 (2014)), overlitigating the case, and billing for unproductive legal research.  Also, no private attorney general fees were justified because simply vindicating one plaintiff in a FEHA case did not meet the significant benefit prong of CCP § 1021.5.

Private Attorney General: $66,725 CCP § 1021.5 Fee Award To Real Party In Interest Reversed Under Private Enforcement Necessity Prong

Court Of Appeal Found That Real Party’s Contribution Was Duplicative Of City’s Opposition On The Controlling Issue.

            In Oak Hill Park Co. v. City of Antioch (Let Antioch Voters Decide), Case No. A162604 (1^st Dist., Div. 4 July 18, 2022) (unpublished), real party in interest won a $66,725 private attorney general award based on its opposition to plaintiff’s pre-election challenge to a local ballot initiative.  However, the appellate court saw things differently based on the facts its efforts were duplicative of the city’s opposition on the controlling issue so that real party’s efforts to defend the initiative were neither necessary nor productive.  In doing so, the reviewing court relied upon the constructs set forth in Committee to Defend Reproductive Rights v. A Free Pregnancy Center, 229 Cal.App.3d 633, 642-644 (1991), finding the undisputed facts showed the award was an abuse of discretion based on city’s carrying of the load on this particular issue.

Private Attorney General: Although Vindicating A Conceptually Important Interest, The Discretion Invested In The Governmental Entity On A Fact-By-Fact Basis Properly Supported A Trial Court’s Refusal To Award Fees

Factual Nature Of The Specific Issue Was Dispositive.

            Litigants which win some relief against a municipality may be entitled to private attorney general fees under CCP § 1021.5.  However, there are several elements they must surmount, including a paramount concern that they vindicated a significant benefit on behalf of the public or a large class of persons. 

            Unfortunately, the lower court in Cassilly v. City of Los Angeles, Case No. B311132 (2d Dist., Div. 8 July 6, 2022) (unpublished) found that a conceptually important right was vindicated but it was not a “significant benefit” in denying fees to partially prevailing plaintiffs.   The appellate court agreed. 

            Plaintiffs did win a narrow dispute against Los Angeles based on whether a historical assessment needed to be made to demolish and rebuild a house in the Venice area of L.A.  The trial court granted very narrow relief on whether a survey creating a presumption of a historical resource was in play, but it did not rule out that a further historical resource assessment or EIR might be needed in the future, given some discretionary decisions in this area by the city.  The city did some technical amendments in line with the lower court’s ruling.  Plaintiffs then moved for CCP § 1021.5 attorney’s fees, which were denied.

            Both the lower and appellate courts acknowledged that because CEQA rights were involved, a “conceptual” important right was involved.  But that is where the discussion dovetailed into the factual weeds of the case.  The problem is that the survey issue did impact some Venice property owners, but the city’s discretion on the issue made it a fact-by-fact determination, with no proof showing a uniform municipal practice of requiring a EIR across the board.  Given the discretionary nature of decision making on this issue and lack of a uniform policy, the fee denial was affirmed on appeal.

Private Attorney General: Lower Court Properly Denied CCP § 1021.5 Fee Request By Plaintiff Which Dismissed Its Complaint Without Showing That Nonsettling Defendants Changed Their Behavior As A Result Of The Lawsuit

Success/Causation Elements Of Section 1021.5 Were Not Demonstrated.

            In Companion Animal Protection Society v. Puppies4Less, Case No. E076858 (4^th Dist., Div. 2 June 29, 2022) (unpublished), plaintiff sued certain defendants for selling animals to pet stores which were not obtained from nonprofit animal shelters or rescue groups.  Some defendants settled, others did not, and plaintiff dismissed the complaint after winning an initial TRO but losing a renewed TRO and then losing a preliminary injunction.  Plaintiff then moved for private attorney general fees, a request which was denied.  The 4/2 DCA affirmed.  The reasons were that plaintiff failed to prove success or that plaintiff’s conduct resulted in any changed behavior by the nonsettling defendants—crucial elements which had to be shown for fee entitlement under CCP § 1021.5.

Private Attorney General: Property Owner’s Proposition 218 Win Over Water Rates Justified $89,500 Attorney’s Fees Award Under CCP § 1021.5

Fee Award Was Less Than Requested $188,806.50.

            Miner’s Camp, LLC v. Foresthill Public Utility District, Case No. C088828 (3d Dist. June 23, 2022) (unpublished) demonstrates how private attorney general awards will be allowed even where the litigant has some self-interest in the fight, as long as an award is not disproportionate and benefits others.

            What happened in this one was that plaintiff, a property owner in the unincorporated community of Foresthill, CA, successfully challenged a water district’s rate increase under Proposition 218.  After the win, plaintiff moved for $188,806.50 in private attorney general fees, with the lower court awarding $89,500. 

            The water district’s appeals of the merits determination and fee award were unsuccessful.  Plaintiff’s win had benefited all the district’s customers, not just plaintiff, through the abandonment of its deficient rate structure—a significant nonpecuniary benefit to others.  Then, district argued that plaintiff had a self-interest in paying less while continuing to take eight cabins’ worth of water every month.  However, a litigant’s pecuniary interest in the litigation outcome is not disqualifying, only if the expected value of the plaintiff’s own monetary award exceeds by a substantial margin the actual litigation costs.  In fact, the primary effect test for purposes of a plaintiff’s personal economic interest is really confined to catalyst issues, not rising to disqualification automatically outside of those situations.  Finally, the necessity of private enforcement prong was cleared because nothing indicated the district was going to voluntarily change its water rate structure to comply with Proposition 218—especially given that the district rejected plaintiff’s government claim and refused to change its rate structure.  Fee award affirmed. 

Private Attorney General: Dept. of Water Resources Environmental Impact Cases Is Now Published.

Trial Court Applied The Incorrect Legal Standard In Determining Causal Link For Defendant Providing The Primary Relief Sought By Plaintiffs When It Denied Plaintiffs’ Request For Fees Under Code Civ. Proc., § 1021.5 Based On The Catalyst Theory.

            We discussed Dept. of Water Resources Environmental Impact Cases, Case No. C091771 (3d Dist., May 11, 2022), which was unpublished at the time, in our May 18, 2022 post. In it, the Third District reversed and remanded the trial court’s denial of attorney fees sought by Plaintiffs under Code Civ. Proc., § 1021.5 based on the catalyst theory – finding that the trial court applied the wrong legal standard where it treated a directive issued by the Governor as the superseding cause of the relief obtained without considering whether plaintiff’s lawsuits were a substantial factor in the Governor’s decision to issue the directive. We can now report that the opinion was certified for publication on June 3, 2022.

Private Attorney General: Third District Affirms Trial Court’s Denial Of Section 1021.5 Attorney Fees Of Almost $130,000 To Plaintiff Who Dismissed Action After Entering Into Stipulation With Defendant

Plaintiff Failed To Meet Its Burden Of Proving Prevailing Party Status, Especially In Light Of Defendant’s Evidence That The Relief Plaintiff Sought Was Already Being Implemented Before Plaintiff Filed Its Action.

            Pursuant to a stipulation between the parties, plaintiff dismissed its action, regarding an unlawful stream obstruction that impaired fish passage, against defendant two months into litigation.  Afterward, plaintiff moved for almost $130,000 in attorneys’ fees pursuant to California’s Private Attorney General Act. (Code Civ. Proc., § 1021.5.)  The trial court denied the motion – finding that defendant was already in the process of implementing the relief plaintiff sought at the time plaintiff filed its action.  Plaintiff appealed in Water Audit Cal. v. Nevada Irrigation Dist., Case No. C092877 (3d Dist., May 12, 2022) (unpublished), arguing that the trial court erred in concluding it was not a successful party because the stipulation was “a formal change in legal status.” 

            Under section 1021.5, a “successful party” means a “prevailing” party succeeding on any significant issue in litigation which achieves some of the benefit sought in bringing the action. (Sweetwater Union High School Dist. v. Julian Union Elementary School Dist., 36 Cal.App.5th 970, 982 (2019) [discussed in our June 9, 2019 post].)  However, plaintiff failed on appeal to meet its burden of proving it was the prevailing party – citing to nothing in the stipulation or its complaint to support its prevailing party claim. Additionally, plaintiff failed to address defendant’s evidence of its ongoing efforts to remediate the impaired fish path – evidence that demonstrated there was no causal connection between plaintiff’s lawsuit and the relief obtained.  The Third District affirmed.

Private Attorney General: Trial Court’s Denial Of Attorney Fees Sought Under The Catalyst Theory By Plaintiffs Who Ultimately Obtained The Relief They Sought Reversed And Remanded For Rehearing

Trial Court Failed To Consider Whether Plaintiffs' Lawsuits Were The Catalyst For The Relief Obtained.

            In Dept. of Water Resources Environmental Impact Cases, Case NO. C091771 (3d Dist., May 11, 2022) (unpublished), lawsuits filed against Dept. of Water Resources regarding a project meant to improve the State’s water supply infrastructure were coordinated for trial, but voluntarily dismissed after DWR provided the primary relief sought by plaintiffs.  After dismissal, plaintiffs moved for attorney fees under Code Civ. Proc., § 1021.5 based on the catalyst theory – claiming that their litigation ultimately caused DWR to take the action it did.  The trial court denied the motion – finding that DWR was motivated by a directive from the Governor, not by plaintiffs’ lawsuits. 

            On appeal, plaintiffs argued that the trial court applied an incorrect standard in determining whether there was a causal link between plaintiffs’ lawsuits and the relief obtained, and that substantial evidence did not support the trial court’s finding that there was no causal link.  The Third District agreed – finding abuse of discretion in the trial court’s failure to apply the correct legal standard as the trial court erroneously treated the Governor’s directive as the superseding cause of the relief obtained without considering whether plaintiffs’ lawsuits were a substantial factor in the Governor’s decision to issue the directive.

BLOG UPDATE: We can now report that this opinion was certified for publication on June 3, 2022.

Private Attorney General: Plaintiffs’ Fee Award Of $2,123,591 In DUI Conflict Of Interest Case Affirmed

However, Because Plaintiffs Entitled To Judgment On All Claims, Matter Remanded To See If Additional Trial Fees Should Be Awarded As Well As Calculation Of Winning Appellate Fees.

            Boy, oh boy, what appellate decisions can do with respect to fee awards.

            In California DUI Lawyers Assn. v. Cal. Dept. of Motor Vehicles, Case Nos. B305604/B309145 (2d Dist., Div. 4 Apr. 15, 2022) (published), plaintiffs had won some pieces and lost some pieces on summary judgment/adjudication motions relating to civil rights, due process, and illegal expenditure of funds claims relating to the theory that hearing officers have an irreconcilable conflict of interest in advocating DMV interests and acting as triers of fact in DUI hearings.  The lower court, based on plaintiffs’ partial victories, found plaintiffs were the prevailing parties, awarding them $2,123,591 in attorney’s fees under California’s private attorney general statute, but denying their request for fees of $5,242,243 (the lodestar plus a two-times positive multiplier—mainly denying the multiplier and cutting down the lodestar request from $2,621,121.50 to $2,123,591).

            On appeal, the 2/4 DCA decided that plaintiffs were entitled to judgment as a matter of law on all claims.  As such, it affirmed the fees award, finding that the trial judge did not abuse her discretion in determining that no multiplier was required because the matter did go to trial, there some skill missteps on the summary judgment motions, and the contingency risk was reflected in the hourly rates awarded to winning attorneys.  However, because plaintiffs had additional success, the matter was remanded to see if any more trial fees were warranted as well as to calculate reasonable appellate fees to be awarded to plaintiffs for winning on appeal.

Homeowner Associations, Private Attorney General: Lower Court Got It Right In Denying Fees To Homeowner And HOA Which Did Not Meet Their Main Litigation Objectives, And Homeowner Was Not Successful Party Or Provided A Significant Benefit Under CCP § 102

Ending Appellate Court Comment Urges Homeowners and HOAs To Work It Out, Rather Than Run To Court, Saying “Amen” To Trial Judge’s Closing Observation.

            In Artus v. Gramercy Tower Condominium Assn., Case No. A161265 (1^st Dist., Div. 2 Mar. 30, 2022) (published), a homeowner sued an HOA over election voting rules and sale/leasing guidelines.  Homeowner lost one claim on demurrer, a second claim on an anti-SLAPP motion, and dismissed three others as moot based on unilateral changes to rules/guidelines by the HOA.  Then, both sides moved for prevailing party fees under the Davis-Stirling fee shifting provision, with homeowner also claiming fees under the private attorney general statute; both sides asked for over $300,000 in fees.  They submitted 1,867 pages of fee proceeding paperwork, and then charts and 217 more pages when the trial judge asked for more information.  The trial judge denied both fee motions in a detailed ruling, prompting an appeal by both sides (who had been before the appellate court before in the same dispute).

            The 1/2 DCA affirmed.  It initially decided that the abuse of discretion standard applied, even as to entitlement, because there was no clear “winner take all” prevailing party.   With respect to homeowner’s Davis-Stirling fee request, homeowner only obtained one out of four of her litigation objectives, obtaining some changes by the HOA to some rules/guidelines (many of which were technical in nature).  On the HOA side, HOA did not achieve its objective to fight Dr. Artus forever as far telling it how to govern, even though it did unilaterally make changes—to make changes after fighting so hard was a difficult pill to swallow as far as showing it pragmatically prevailed.  Finally, on homeowner’s 1021.5 request, she was not “successful” and the changes made by HOA did not benefit a wide number of other HOA members. 

            However, the appellate court had to quote and endorse the trial judge’s ending observation in this closing part of its opinion:  “‘I’m aware that there has been a long history of disputes between Dr. Artus and this association, I’m trying to send a message here. And that message is, don’t run to court. Run to try to work things out. Both sides.” To that we say ‘Amen.’”

Private Attorney General: Appellate Court’s Reversal Of Grant Of Peremptory Writ Of Mandate Discharge Directives Also Gave Rise To Reversal Of Denial Of CCP § 1021.5 Fees.

Also, Trial Judge Applied An Inapt Catalyst Theory To The Plaintiff’s 1021.5 Fee Request.

            In Community Venture Partners v. Marin County Open Space Dist., Case Nos. A161851/A162374 (1^st Dist., Div. 4 Mar. 28, 2022) (unpublished), the appellate court reversed the granting of District’s motion to discharge a peremptory writ of mandate in a land use case and the denying of plaintiff’s motion for attorney’s fees under CCP § 1021.5.  It found that the lower court misconstrued what was needed to discharge the writ, so that the fee denial request had to be revisited.  The lower court determined that plaintiff was not the successful party, but the appellate court tried to head off future error by reminding the lower court that a catalyst theory was not in play—so that success on any significant issue with benefit was the correct legal standard for review even though not indicating how the trial judge should rule on remand.

Private Attorney General: $118,089.00 Fee Award For Litigant Partially Prevailing On CEQA Claim Affirmed On Appeal

Traffic Correction In EIR Justified The Award.

            Once you prevail on a significant CEQA issue, fee entitlement under the private attorney general statute is likely the general rule, to the chagrin of municipalities and developers.  However, the trial judge still has discretion to make reductions as in a normal civil fee dispute, as United Homeowners Association II v. Peak Capital Investments, Case No. B308682 (2d Dist., Div. 4 Mar. 24, 2022) (unpublished) demonstrates.

            Here, the trial judge awarded $118,089 under CCP § 1021.5 out of the fee request of $169,651.50.  Because the traffic issue was significant, the fee entitlement challenge on appeal was unsuccessful.  Then, that brought the appellate court to the amount of the fee award.  There were deductions for block billings, duplication, and other issues—all affirmed, with the reviewing panel determining that the trial judge’s “math” behind the fee award not having to be perfect. 

Private Attorney General: 4/2 DCA Reverses Private Attorney General Fee Denial In Housing Plan Dispute With City Of Desert Hot Springs, Remanding For Determination Of Amount To Be Awarded

Private Enforcement Necessity Prong Does Not Require Causation, With The Litigation Vindicating Important Affordable Housing Rights For A Large Class Of People.

            Plaintiffs sued the City of Desert Hot Springs and related parties to force a long overdue obligation to revise the housing element of the city’s general plan.  The city had missed numerous deadlines in the past relating to a housing plan, stalled further during prelitigation negotiations with plaintiffs, and only later entered into a stipulated judgment to adhere to certain housing plan guidelines after a suit was filed.  Plaintiffs then moved to recover $328,255 in attorney’s fees under CCP § 1021.5, California’s private attorney general statute.  The trial judge’s tentative was to award a reduced amount of $121,485 in fees, but he then pivoted to award nothing.  He reasoned plaintiffs did not cause the city to eventually agree to the deadline, because it was in the process of doing so—meaning that private enforcement necessity was not shown.

            The 4/2 DCA reversed and remanded for the trial judge to determine the amount of fees to be awarded to plaintiffs in Garcia v. City of Desert Hot Springs, Case No. E075523 (4^th Dist., Div. 2 Mar. 16, 2022) (unpublished).  Legally, causation is irrelevant on the private enforcement necessity prong of section 1021.5, just that public enforcement is not sufficiently available as was shown by city’s conduct along the way.  (City of Sacramento v. Drew, 207 Cal.App.3d 1287, 1298 (1989).)  Beyond that, plaintiffs did vindicate an important affordable housing public issue impacting a large class of people.  Finally, because plaintiffs did achieve their litigation objectives, the appellate court determined that the lower court erred by not awarding $94 in routine costs to plaintiffs. 

Private Attorney General: Fees Properly Denied Where Trial and Appellate Court Had Skepticism That Lawsuit Inspired Changes On Water Rates

City Looked Like It Made Changes Regardless of Lawsuit.

            Under CCP § 1021.5, public interest litigants—if satisfying multiple levels of necessary elements—can be awarded attorney’s fees for vindicating public interests under a catalyst theory.  This usually means that the litigants inspired change by a government entity such that a bounty should be awarded.  However, the catalyst theory is often factually intensive, as Plata v. City of San Jose, Case No. G060382 (4^th Dist., Div. 3 Jan. 3, 2022) (unpublished) illustrates. 

            In this one, a lower court denied fees for a Proposition 218 and related claims because it was skeptical the City made changes to the water tiered-rate system based on a lawsuit based on a much publicized, much regaled Capistrano decision.  The appellate court agreed.  The timeline of events showed that Capistrano inspired a review (as it did for many municipalities), with the litigation only having some influence.  But, in these situations, whether the lawsuit was a substantial factor in the change was a factual call by the lower court, as Acting Presiding Justice Bedsworth observed as the author of the opinion, when sustaining the denial of fees.

Private Attorney General: $2.2 Million Fee Award To Various Parties Reversed

Reason Was Pretty Simple—The Claiming “Successful” Party Was Not Upon Reversal.

            City of Gardena v. State Water Resources Control Board, Case No. G059466 (4^th Dist., Div. 3 Sept. 22, 2021) (unpublished) is a situation where certain litigants won CCP § 1021.5 fees after prevailing on a regional water board dispute.  The total fees came close to $2.2 million, assuming our math is correct in this opinion.  However, on appeal, the merits judgment was reversed for the parties which were awarded fees.  Based on the merits reversal, the fee awards fell also.  Former “successful” parties made a run at it on appeal, but the 4/3 DCA—in an opinion authored by Justice Fybel—had to overturn the fee award because they were not successful in the end. 

Private Attorney General: Petitioner Winning First Round Of San Francisco Bay Mineral Extraction Lease Dispute, Getting Paid Under A Settlement, Did Not Get Any Further CCP § 1021.5 Fees By Failing To Succeed In The Second Phase

Future Losses Can Change The Private Attorney General Analysis.

            Petitioner in San Francisco Baykeeper, Inc. v. Cal. State Lands Commission (Hanson Marine Operations, Inc.), Case No. A159693 (1^st Dist., Div. 4 Sept. 17, 2021) (unpublished) did initially prevail in a dispute with the Commission over approval of several 10-year mineral extraction leases that authorized real party in interest Hanson to dredge mine sand from under the San Francisco Bay.  The trial judge earlier denied the challenge, but the First District reversed in a published decision, with petitioner obtaining fees under a settlement agreement with other parties.  However, Commission basically won in another go-around when a different panel of the First District found no public trust was implicated.  Petitioner moved again for fees, but the lower court denied them.  This denial was affirmed on appeal, given that success at early stages does not mean private attorney general entitlement for a party not ultimately succeeding in subsequent stages of a case.  (See National Parks & Conservation Assn. v. County of Riverside, 81 Cal.App.4^th 234, 240 (2000) [“it is not true that a previously successful party is entitled to fees for postjudgment litigation regardless of the outcome of that litigation”]; see also Ebbettts Pass Forest Watch v. Dept. of Forestry & Fire Protection, 187 Cal.App.4^th 376, 387 (2010).)

Private Attorney General, POOF!: Reversal Of CEQA Parking Lot Issue Petition In Entirety Also Vacated Private Attorney General Fee Award

$154,000 In Fees Went POOF!

            The appellate court in Save Our Access-San Gabriel Mountains v. Watershed Conservation Authority, Case Nos. B303494 et al. (2d Dist., Div. 8 Aug. 19, 2021) (published) reversed a CEQA petitioner’s win on a parking lot issue in entirety.  Petitioner had won $154,000 in private attorney general statute fees (used often in CEQA litigation) at the lower court stage, but that went POOF! on appeal with the reversal.

Private Attorney General: $115,000 Fee Award To School District In Winning Charter School Zoning Exemption Dispute Was Affirmed On Appeal

Implied Findings On CCP § 1021.5 Elements Will Suffice Legally.

            The school district in San Jose Unified School Dist. v. Rocketship Education, Case No. H045884 (6^th Dist. Aug. 16, 2021) (unpublished) successfully challenged a charter school zoning exemption, in a lower court ruling affirmed in an earlier published appellate decision.  The District then obtained a $115,000 attorney’s fees award under CCP § 1021.5, California’s private attorney general statute.  That award was affirmed on appeal.   Even though there was no express finding of a public interest, the trial judge made an implied finding, which was sufficient.  On the significant benefit element, that also was satisfied because the charter school element is a charged issue, and the Legislature must be approached to make inroads into giving increased public school facility access to charter schools.  Finally, on the financial interest, there was one, but the benefit to the District was speculative as far as financial savings given that charter schools were allowed to operate, but only not allowed to operate in particular locations. 

Private Attorney General: No Abuse Of Discretion In Trial Court’s Denial Of § 1021.5 Attorney Fees To Plaintiff Achieving A Significant Public Benefit

The Third District Applied The Standard For Determining Necessity Of Private Enforcement, Where The Attorney General Performs Its Function, Set Forth In Committee to Defend.

            After the Attorney General filed a complaint for declaratory and injunctive relief and petition for writ of mandate alleging defendant violated the California Wild and Scenic Rivers Act (Rivers Act) (Public Resources Code § 5093.542), plaintiff filed a similar complaint alleging defendant violated the Rivers Act in North Coast Rivers Alliance v. Westlands Water District, Case No. C092233 (3^rd Dist., June 28, 2021) (unpublished).  After plaintiff and defendant entered a stipulation for entry of judgment, which was identical to the stipulated judgments entered in the Attorney General’s cases against defendant, plaintiff moved for more than $303,835 in attorney fees pursuant to Code Civ. Proc. § 1021.5.  The trial court denied – finding that although plaintiff achieved a significant public benefit in obtaining the stipulated judgment, plaintiff provided nothing to show that it produced any evidence, let alone substantial evidence, contributing to the judgment, or any evidence that was not provided by the Attorney General.  Therefore, plaintiff had failed to meet its burden of showing that it rendered necessary and significant services necessary to the success achieved. 

            The Third District – following the standard for determining necessity of private enforcement set forth in Committee to Defend Reproductive Rights v. A Free Pregnancy Center, 229 Cal.App.3d 633 (1991) – found no abuse of discretion and affirmed. 

            In Committee to Defend, the trial court set forth two factors for trial courts to consider when determining whether the services of a private party were necessary where the Attorney General performs its function – whether the private party advanced significant factual or legal theories adopted by the court which were nonduplicative of those advanced by the governmental entity; and whether the private party produced substantial evidence significantly contributing to the court’s judgment which was not produced by the governmental entity, and which was neither duplicative of nor merely cumulative to the evidence produced by the governmental entity. 

Private Attorney General: No Abuse Of Discretion In Trial Court’s Award To Plaintiffs Of $66,345.50 In Section 1021.5 Attorney Fees Where Plaintiffs’ Personal Benefit Outweighed Plaintiffs’ Litigation Costs.

The Significant Public Benefits Achieved In This Case Were Very High – Impacting Over 7,500 Water District Customers Facing An Unconstitutional Rate Increase Of Approximately 200%.

            In KCSFV I, LLC v. Florin County Water District, Case No. C088824 (3^rd Dist., May 28, 2021) (published; fee discussion unpublished), plaintiffs succeeded in their petition for writ of mandate and complaint for declaratory and injunctive relief – claiming Water District had violated Proposition 218 (approved by California voters in 1996 to restrict the ability of state and local governments to impose taxes and fees) with its December 2016 water rate increase.  Plaintiffs then moved postjudgment for, and were awarded, $66,345.50 in Code of Civil Procedure § 1021.5 attorney fees.  Defendants appealed both the judgment and postjudgment fees order, and the Third District affirmed.

            As to the fees, the panel disagreed with each of defendants’ arguments, and found plaintiffs met their required showing under § 1021.5 and were entitled to fees.  Plaintiffs’ action vindicated an important public right and conferred a significant benefit on a large class of persons as over 7,500 Water District customers, facing an unconstitutional rate increase of approximately 200%, benefited directly from plaintiff’s action.  Because the significant public benefits achieved were very high, there was no abuse of discretion in the trial court awarding fees where plaintiffs’ personal benefit outweighed the litigation costs.  (Los Angeles Police Protective League v. City of Los Angeles, 188 Cal. App.3d 1, 10 (1986).)

            Finally, defendants argued that the trial court abused its discretion by failing to reduce plaintiffs’ fees for redactions, block-billing, and because plaintiffs did not prevail on every legal theory they advanced.  Again, the Third District found no abuse of discretion – disregarding defendants’ conclusory arguments not supported by reasoning.  (United Grand Corp. v. Malibu Hillbillies, LLC, 36 Cal.App.5^th 142, 153 (2019).)

Private Attorney General: $129,000 CCP § 1021.5 Fee Award In Groundwater-Extraction Cap Decision Was No Abuse of Discretion

Even An Objective Whitley Analysis Justified The Lower Court Decision, Especially Where The Ultimate Award Was Less Than The Requested $240,000 In Fees.

            Under our category “Private Attorney General,” we have posted on numerous decisions on fee awards under CCP § 1021.5.  Many involve the costs/benefit “financial prong” analysis required under Conservatorship of Whitley, 50 Cal.4^th 1206, 1214-1215 (2010) [our Leading Case No. 14].  Here, the trial court decision to order a reduced fee request was warranted based on an objective, costs-benefit analysis under Whitley.

            In Gomes v. Mendocino City Community Services Dist., Case No. A160420 (1^st Dist., Div. 4 May 27, 2021) (unpublished), plaintiff obtained partial success in his challenge to a groundwater-extraction cap that the District applied to his property, in a published decision.  Plaintiff had some draconian options to pay (likely $141,000) or to abandon with a reducing to property value up to $59,000.  After his win, plaintiff moved to recover $240,000 in section 1021.5 fees, with the lower court awarding $129,000 to plaintiff as against the District.

            District’s appeal on the Whitley financial prong did not prevail.  Under an objective “costs-benefit” analysis, plaintiff demonstrated enough of a range to show that his expenditure in fees deserved section 1021.5 compensation, especially given the uncertainties in outcome:  plaintiff’s potential upside was $141,000 if he did not decide to abandon his well as a source of groundwater or at least a $59,000 property loss if he did abandon much less puruse an extraction permit including possibly more loss of property value.  Given these ranges of uncertainty, the section 1021.5 fees expenditures certainly were way beyond what plaintiff could have recovered personally in this case—given the analysis is not a post facto review.