CALIFORNIA ATTORNEY'S FEES

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 v. Diestel Turkey Ranch, Case No. A162702 (1^st Dist., Div. 2 Mar. 1, 2023) (unpublished) is an opinion with many cross-over issues as identified in our main title to this post.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

Private Attorney General: Denial Of $250,000 Fees Request To Prevailing Respondent In Health Care Clinic Turf Battle Affirmed On Appeal

Respondent Had Too Much Of A Pecuniary Interest, Even As A Non-Profit With Respect To Stake In The Litigation.

            Inyo County Local Agency Formation Commission v. Southern Mono Healthcare Dist., Case Nos. C085138/C086087 (3d Dist. May 13, 2021) (unpublished), involved a mandate petition filed by a petitioner against Southern Mono in what was, in essence, a “turf war” over whether respondent could serve the Eastern Sierra area from its South Main Street medical clinic in Bishop.  Southern Mono won based on statute of limitations and laches defenses, then moving for over $250,000 in private attorney fees.  The trial court denied the request, with the appellate court affirming that determination.  The main problem was that Southern Mono submitted evidence that it would lose $780,000 in hard costs, monthly lease payments of $8500 with no recoupment ability, and would lose lots of business.  Despite that it was a non-profit, this pecuniary loss justified the trial court’s conclusion that the winning party had too much at stake for purposes of obtaining CCP § 1021.5 fees.  (Jobe v. City of Orange, 88 Cal.App.4^th 412, 418-419 (2001).)  The broader “health access” concerns did not outweigh Southern Mono’s pecuniary interest. 

Multipliers, Private Attorney General, Special Fee Shifting Statutes: The 1/5 DCA Affirms $2,961,264.29 Fees And Costs Award, Inclusive Of A 1.4 Multiplier, To Prevailing Plaintiff In Action For Violations Of A Conservation Easement

Plaintiff’s Attorneys, Who Bore The Risk Of Taking On A Partially Contingent Case With Important Public Interests At Stake, Displayed Exceptional Expertise and Skill In A Case Involving Nearly Five Years Of Contentious Litigation And A 19-Day Trial.

            Following a 19-day bench trial in The Sonoma Land Trust v. Thompson, Case No. A159139 (1^st Dist., Div. 5 April 30, 2021) (published), defendant property owners and their non-party corporation were found jointly and severally liable for violations of a conservation easement – with plaintiff nonprofit easement holder being awarded $575,899 in monetary damages, which included $318,870 for the costs of restoring the property, and injunctive relief (results affirmed in a previous appeal).  Additionally, the trial court awarded plaintiff with attorney fees and costs of $2,961,264.29, inclusive of a 1.4 multiplier, under Civ. Code § 815.7(d), Code Civ. Proc. § 1021.5, and the conservation easement itself.  

            Defendants appealed, but the 1/5 DCA affirmed.

            Contrary to defendants’ contention, the trial court was not required to deduct the initial $500,000 in fees paid by plaintiff’s insurance policy as trial courts may award fees regardless of who paid the fees, and plaintiff did not receive a double recovery as, pursuant to its insurance policy, it had to reimburse its insurer from any damage award.  Additionally, pursuant to the easement, plaintiff was entitled to its fees as the prevailing party – whether or not it actually paid the fees.

            The panel also was not persuaded by defendants’ vague arguments that plaintiff’s attorneys were inefficient and over-litigated an easy case – especially given that the litigation was contentious, dragged on for nearly five years, involved a 19-day trial, and plaintiff’s counsel had reduced its request by more than 10 percent to account for duplications and inefficiencies. 

            As to the multiplier, there was no abuse of discretion.  The contingent risk plaintiff’s attorneys faced was not eliminated by the initial insurance payment – it was merely mitigated.  The trial court reduced plaintiff’s requested multiplier from 1.6 to 1.4 after properly considering that plaintiff’s attorneys received some fees upfront, then proceeded on a “fully contingent basis . . . due to the important public interests at stake.” 

            Finally, defendants argued that the trial court improperly used the skill level of plaintiff’s attorneys and the novelty and difficulty of the case to justify the lodestar and the multiplier – resulting in double counting.  Not so, said the panel.  Based on the exceptionally high levels of skill and expertise displayed by plaintiff’s counsel – that was not fully factored in to the lodestar – the trial court could have reasonably set a higher hourly lodestar rate.  However, the lower lodestar allowed the trial court more room for a multiplier to provide fair compensation for plaintiff’s attorneys – with the panel noting that the contingent risk factor alone justified the multiplier.

Private Attorney General: Even Though CHP Violated Detainee Policy On Medical Treatment, The Result Was Factually Sensitive Such That CCP § 1021.5 Fees Were Properly Denied

Although Many Of The Factors Were Present, Absence of Vindication Of An Important Right Affecting The Public Interest Was A Correct Conclusion By The Lower Court.

            In Frausto v. California Highway Patrol, Case No. A159504 (1^st Dist., Div. 2 Apr. 22, 2021) (unpublished), as often is the case, the case ultimately came down to who wins attorney’s fees.  Unfortunately, plaintiffs did not.

            Plaintiffs won a wrongful death action, solely on a negligence account, on behalf of their decedent son who sued on the basis he should have been taken to a hospital, rather than a jail, even though he concealed that he swallowed drugs rather than gum.  A jury awarded plaintiffs $645,484.82 in compensatory damages after comparative negligence offsets, a determination affirmed in a prior published decision.  Plaintiffs then moved for attorney’s fees under CCP § 1021.5, a motion which was denied based on not satisfying the public interest element even though many other elements were met for a private attorney general fee award.

            The fee denial was affirmed.  Given that an earlier published decision was involved, the appellate court was in the same position as the trial court to decide the section 1021.5 issue, even though it did not matter in the end.  The problem for plaintiffs was that the CHP did have a policy on medical detention, which was violated under unique facts where the decedent concealed what he had ingested.  Under these particular circumstances (given the presence of a CHP policy), the breach verdict by the jury did not implicate a public interest when the specific nature of the compensatory verdict was considered in a holistic sense.  Fee denial affirmed.

Appeal Sanctions, Private Attorney General: 4/1 DCA Denies Requests For Appeal Sanctions And Private Attorney General Fees To Derivative Action Plaintiffs That Were Successful In Proving Former President/CEO’s Breach Of Fiduciary Duty

Although Unsuccessful, Former President/CEO’s Arguments On Appeal Were Not Objectively Without Merit So As To Rise To The Level Of Frivolity Justifying Sanctions, And Plaintiffs Forfeited Their Claim To § 1021.5 Private Attorney General Fees By Not Making It Before The Trial Court.

            In A&B Market Plus, Inc. v. Arabo, Case No. D073850 (4^th Dist., Div. 1 March 25, 2021) (unpublished), members or former members of a non-profit benefit corporation/trade association for independent retail convenience stores (Association) filed a derivative action against Association, its former President and CEO, and its treasurer and secretary.  Plaintiffs sought removal of former President/CEO and treasurer/secretary from Association’s board of directors, disgorgement of at least $463,322.63 obtained through alleged misdeeds, and other damages for tax evasion and lost business opportunities.  The trial court returned a defense judgment for treasurer/secretary, but concluded, among other things, that former President/CEO had breached his fiduciary duty and had to return to Association a $210,000 bonus paid to him based on former President/CEO’s false representation concerning his involvement in a real estate deal for Association.

            Former President/CEO unsuccessfully appealed the trial court’s ruling concerning the $210,000 bonus.  However, in a cross-appeal, plaintiffs sought sanctions against former President/CEO for pursuing a frivolous appeal and, alternatively, sought to recover attorney’s fees under Code Civ. Proc. § 1021.5. 

            The 4/1 DCA denied both requests.  Former President/CEO’s appeal did not rise to the level of frivolity so as to warrant sanctions under Code Civ. Proc., § 907 or under Cal. Rules of Court, Rule 8.276(a)(1).  Although the panel determined former President/CEO’s arguments on appeal lacked merit, those arguments were not objectively devoid of any merit.  As to the § 1021.5 fees request, plaintiffs forfeited this claim by not making it before the trial court.

            Finally, pursuant to Cal. Rules of Court, Rule 8.276(a)(3), former President/CEO sought monetary sanctions against plaintiffs and their appellate counsel for filing plaintiffs’ sanctions motion.  However, because he made the request in an opposition brief instead of properly serving and filing a separate motion, the request was denied.

Private Attorney General: No Abuse of Discretion In Trial Court’s Denial Of § 1021.5 Fees To Prevailing Plaintiff Couple In Mandamus Action Compelling The City Of Los Angeles To Revoke Permit Issued To Neighbor

The Trial Court Concluded Plaintiffs Failed To Establish Any Of The Three Requirements Affecting Eligibility For A Fees Award Under Section 1021.5, But Their Failure To Meet The Required Showing That The Financial Burden Of Private Enforcement Made The Award Appropriate Was Alone A Sufficient Basis For Denial.

            In Boppana v. City of Los Angeles, Case No. B304823 (2d Dist., Div. 7 March 12, 2021) (unpublished), two neighbors were locked in litigation for years over walls, fences, tree disputes, and surveillance of each other. Eventually, plaintiff couple successfully filed a petition for writ of mandate to compel the City of Los Angeles to revoke other neighbor’s permit for a fence, gate and wall the neighbor had built along his front yard and a public right-of-way situated between the dueling neighbors’ properties.  Plaintiff couple then moved for $88,500 in Code Civ. Proc. § 1021.5 attorney’s fees.  The trial court denied – concluding plaintiffs had not met any of the three required showings under § 1021.5 for an award of fees. 

            The 2/7 DCA found no abuse of discretion and affirmed in Boppana v. City of Los Angeles, Case No. B304823 (2d Dist., Div. 7 March 12, 2021) (unpublished).  The panel questioned whether plaintiffs had met the first two required showings – (1) that their action resulted in the enforcement of an important right affecting the public interest, and (2) that a significant benefit had been conferred on the general public or a large class of persons.  However, because plaintiffs had clearly failed to meet the third showing – (3) that the necessity and financial burden of private enforcement made the award appropriate – a determination on the first two requirements was not necessary.   Plaintiffs claimed neighbor’s structures caused them $400,000 in damages, and expected to recover at least that amount through litigation.  To address this issue at the hearing for plaintiffs’ request for fees, their counsel proposed a discount factor of 75% to the amount of plaintiffs’ expected compensatory damages – resulting in a reduction from $400,000 to $100,000.    In comparing the $100,000  figure to the $88,500 in attorneys’ fees that plaintiffs incurred, the trial court properly concluded the cost of the mandamus litigation did not transcend plaintiffs’ financial incentive.

Allocation, Employment, Mulitpliers, Private Attorney General: 1/1 DCA Reverses $2,905,200 In PAGA Penalties Against Defendant, But Affirms $7,793,030 In Attorney Fees Inclusive Of A 2.0 Multiplier

The Fees Award Was Supported By PAGA, Section 1021.5, And The Catalyst Theory, And Apportionment Of Fees Among The Retaliation And PAGA Claims Was Neither Necessary Nor Possible, While Complexity Of Issues And Skill Of Attorneys Supported Multiplier In This Intensely Litigated Case.

            In Sargeant v. Board of Trustees of The California State University, Case Nos. A153072/A154926 (1^st Dist., Div. 1 March 5, 2021) (published) (fees discussion unpublished), a health-and-safety technician employed at Sonoma State University sued Cal State University and his supervisor alleging five retaliation causes of action for the way he was treated after raising environmental concerns related to lead paint and asbestos.  Specifically, plaintiff's causes of action fell under the Whistleblower Protection Act (Lab. Code §§ 1102.5, 6310, 6399.7, 232.5), the California Fair Employment and Housing Act (FEHA, Gov. Code, § 12900 et seq.), and one cause of action for civil penalties under the Labor Code Private Attorneys General Act of 2004 (Labor Code, § 2698 et seq.,) (“PAGA”) premised on allegations that CSU had violated various provisions of Cal-OSHA.

            The jury returned special verdicts against defendants – finding in plaintiff’s favor on three retaliation claims and on the PAGA claim, and awarding plaintiff $271,895 in past and future economic damages, plus $116,000 in noneconomic damages.  Because plaintiff elected the equitable remedy of reinstatement in lieu of the past and future economic damages, only the noneconomic damages were included in the judgment.  Additionally, the trial court ordered CSU to pay civil penalties of $2,905,200 for its various violations.

            Plaintiff then moved for more than $11.5 million in fees which included a 3.0 multiplier for three of the five attorneys representing him.  The trial court awarded $7,793,030 in fees – finding that three legal bases supported the award: (1) PAGA itself, which authorizes a fee award to a prevailing employee (§ 2699, subd. (g)(1)), (2) Code of Civil Procedure section 1021.5, which authorizes a fees award when an action results in the enforcement of an important right affecting the public interest; and (3) the “catalyst doctrine.”  Additionally, the trial court found that it was neither necessary nor possible to apportion the fees among the retaliation and PAGA causes of action.  Finally, the trial court concluded that a multiplier was appropriate given the complexity of the case, the skill of plaintiff’s attorneys, the extent to which the litigation precluded other employment, the contingent nature of the fee award, and the fact an award against the state would ultimately fall on the taxpayers, but reduced plaintiff’s requested 3.0 multiplier to 2.0.

            Defendants raised a number of challenges on appeal, but in the published portion of its decision, the appellate panel affirmed – with exception to the PAGA penalties.  The panel reversed the entire $2,905,200 in PAGA penalties – finding that although plaintiff brought viable PAGA claims, some of the PAGA claims did not themselves provide for penalties, and plaintiff did not suffer personally on those claims premised on the Cal-OSHA violations.

            In the unpublished portion of its opinion, the 1/1 DCA affirmed the attorney fees award – agreeing with the trial court’s conclusions and reasoning, and finding no abuse of discretion.

Cases Under Review, Private Attorney General: Doe v. Regents Opinion Depublished

California Supreme Court Denied Review, But Depublished On Its Own Motion.

            On June 10, 2020 and July 1, 2020, we posted on Doe v. Regents, 51 Cal.App.5^th 531 (2020), where the 2/6 DCA reversed denial of CCP § 1021.5 fees to a UCSB student who successfully obtained reversal of an interim suspension and reinstatement even though the action personally benefitted student.  We can now report that the California Supreme Court denied review on September 30, 2020, but also ordered the decision depublished on its own motion such that the opinion no longer citable. 

Allocation, Private Attorney General: Doe v. Westmont College Is Now A Published Decision

Prevailing Section 1021.5 Parties Successfully Defending The Case On Appeal Are Allowed To Move For Attorney Fees Post-Appeal Even If The Trial Court Denied Their Pre-Appeal Fees Motion.

            We discussed Doe v. Westmont College, Case No. B303208 (2d Dist, Div. 6) in our January 26, 2021 post.  The case was unpublished at the time, but was certified for publication on February 8, 2021.

            In Doe v. Westmont College, plaintiff appealed after the trial court denied his motion for $85,652, under Code Civ. Proc. § 1021.5, for fees incurred on a prior appeal successfully defending the trial court’s judgment issued in his favor – which resulted in a published decision wherein the 2/6 DCA reversed and remanded for a redo.  The trial court had abused its discretion by failing to examine whether private enforcement was necessary and whether the financial burden of private enforcement warranted a fees award.  The panel also found that plaintiff’s failure to apportion fees between those that advanced his private interests and those that advanced the public interest was not an appropriate basis for denial – with the trial court having broad discretion to apportion fees if seeking party has failed to do so. 

          As to defendant’s contention that plaintiff was not entitled to § 1021.5 fees post-appeal because he had not appealed the trial court’s denial of his pre-appeal request for § 1021.5 fees, the panel disagreed.  It found plaintiff’s pre-appeal and post-appeal motions for fees were separate, independent motions.  Plaintiff’s post-appeal motion for fees was not a repeat of the original fees motion that was denied and not appealed, and the resulting published opinion from plaintiff’s defense of the trial court’s judgment in the first appeal conveyed a significant benefit on a large group of people.  In certifying the opinion for publication, the 2/6 DCA modified the opinion to add the following statement: “In some cases, although parties succeed at trial, the full breadth of their success is not realized until they defend the case on appeal. May such a party move for attorney fees post appeal if the trial court denied their preappeal attorney fee motion? We conclude that they may do so.”

Private Attorney General: $69,718 In § 1021.5 Attorney Fees Awarded To Attorney General Xavier Becerra After Defeating Petition To Have His Name Removed From The November 2018 Election Affirmed On Appeal

Becerra’s Successful Defense Resulted In A Published Decision Enforcing An Important Public Right And Conferring A Significant Benefit On The General Public, And Becerra’s Personal Financial Burden Incurred In Defeating The Petition Outweighed Any Pecuniary Benefit Becerra Might Have Received If He Won The Election.

            Plaintiff Eric P. Early (and his election committee) filed a petition for writ of mandate seeking to remove Xavier Becerra as a candidate for Attorney General on the November 2018 ballot on the basis that Becerra was ineligible because he had not practiced during the five years preceding the election, and was not “admitted to practice” as required under Gov. Code § 12503.  Becerra (and his election committee) defeated Early’s petition – a result that the Third District affirmed on appeal in a published opinion that stated for the first time that Gov. Code § 12503 does not require active or actual practice of law, thereby expanding the pool of eligible candidates for Attorney General, for example, to include members of the state bar who had voluntarily taken inactive status while serving in other public office. (Early v. Becerra, 47 Cal.App.5th 325, 329 (2020).)

            After defeating Early’s petition, Becerra successfully moved for Code Civ. Proc. § 1021.5 attorney fees – obtaining a fee award of $69,718 from the trial court in Early v. Becerra, Case No. C089943 (3d Dist., February 8, 2021) (published).  Early appealed and the Third District affirmed.

            Becerra’s successful defense of Early’s petition enforced an important public right and conferred a significant benefit on the general public – resulting in a published decision that put to rest a challenge to the eligibility of a candidate for Attorney General under § 12503, which had twice been mounted against Attorney General candidates, with a claimed disqualification being only that the candidates were “admitted to practice” but “inactive” while serving in other public office. 

            Additionally, there was no abuse of discretion in the trial court’s determination that the financial burden Becerra personally incurred in defending Early’s petition outweighed any pecuniary benefit Becerra might have received in the form of the salary paid to the Attorney General or otherwise.  After all, Becerra’s successful defense did not guarantee that he would be elected and gain the pecuniary benefits associated with being Attorney General – only that his name remained on the ballot.  (Boatworks, LLC v. City of Alameda, 35 Cal.App.5th 290, 310 (2019) [discussed in our June 13, 2019 post].

            Finally, the panel found no abuse of discretion in the amount of fees awarded, and disagreed with Early’s contention that the trial court should have stricken the entirety of Becerra’s fees-on-fees request (fees incurred in bringing a fee motion), rather than only half, based on the trial court’s finding that time spent on Becerra’s fees motion was excessive and unreasonable in part.  Citing Serrano v. Priest, 20 Cal.3d 25, 49 (1977) [our Leading Case No. 3], the panel held that “[t]he ‘experienced trial judge is the best judge of the value of professional services rendered in his [or her] court, and while his [or her] judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.’ ”

Allocation, Private Attorney General: Trial Court’s Application Of The Wrong Standard And Inappropriate Basis For Denying Prevailing Plaintiff’s Postappeal Section 1021.5 Motion For Fees Necessitated Remand

Trial Court Focused On The “Punishment” The Fees Award Would Impose On Defendant For Unsuccessful Appeal Of Judgment Rather Than Examining Determination Factors For Award Under § 1021.5 And Also Erred In Denying Based On Plaintiff’s Failure To Apportion Fees Between His Private Interests And The Public Interest.

            In Doe v. Westmont College, Case No. B303208 (2d Dist., Div. 6 January 25, 2021) (unpublished), plaintiff challenged the defendant college’s determination that he committed sexual assault in a petition for writ of administrative mandate – arguing that Westmont did not give him a fair hearing and that substantial evidence did not support its decision.  The trial court granted plaintiff’s petition, but denied his motion for $58,466 in fees under Code Civ. Proc. § 1021.5.  Plaintiff did not appeal the fees denial, but defendant unsuccessfully appealed the judgment.  After the 2/6 DCA affirmed in a published opinion, plaintiff sought to recover $85,652, under § 1021.5, for fees incurred on appeal.  The trial court denied – finding the published opinion’s significant benefit conferred on a large group of people arose from defendant’s decision to appeal, not plaintiff’s, and that a fee award to plaintiff would “punish [defendant] for appealing rather than vindicate the purposes behind . . . section 1021.5.”  The trial court also denied on the basis that plaintiff provided no apportionment between fees that pertained solely to plaintiff’s private interests and those that advanced the public interest.

            On appeal, plaintiff argued that the trial court erred when it denied his postappeal motion for attorney fees because: (1) his action resulted in the enforcement of an important right affecting the public interest, (2) his action conferred significant benefits on a large group of people, and (3) the necessity and burden of private enforcement made a fee award appropriate. The panel agreed with plaintiff’s first two contentions, and concluded that the trial court had abused its discretion by failing to examine two factors in making its determination re § 1021.5 fees – whether private enforcement was necessary, and whether the financial burden of private enforcement warranted a fees award.  Instead the trial court focused on the “punishment” defendant would suffer for exercising its right to appeal – thereby applying the wrong standard in determining the merits of plaintiff’s motion for fees.

            Additionally, the panel found that plaintiff’s failure to apportion fees between those that advanced his private interests and those that advanced the public interest was not an appropriate basis for denial – with the award of attorney fees being an obligation if the party seeking fees has met the criteria for the award, and the trial court having the broad discretion to apportion such fees if the seeking party is not able to do so.

BLOG UPDATE:  We can now report that Doe v. Westmont College was certified for publication on February 8, 2021.

Costs, Private Attorney General, Reasonableness Of Fees: Petitioners, In Long-Standing San Francisco Bicycle Plan CEQA Challenges, Who Achieved Limited Success, Had Costs Properly Stricken And Recovered 50% Less Than Requested Once The Lodestar Was Reduc

Bottom Line In This Case, Limited Success Will Impact Cost and Fee Recovery, Even In Public Interest Cases.

            We have seen that costs and attorney’s fees in many public interest cases, including those under the private attorney general statute, can be quite large.  However, one should keep in mind that the cost and fee requests can be slashed or denied quite a bit if the plaintiffs/petitioners only obtain limited success.  Anderson v. City & County of San Francisco, Case Nos. A143974 et al. (1^st Dist., Div. 2 Dec. 30, 2020) (unpublished) is a case on point.

            There, petitioners—in a long-standing case generating a prior appeal with limited success—did successfully challenge San Francisco’s Bicycle Plan for CEQA review.  But the victory basically was Pyrrhic in nature.  So, the final strokes for petitioners happened to be what costs and fees they could recoup.

            The trial judge struck $1,813 in costs claimed against City and only granted petitioners $153,346 in attorney’s fees under CCP § 1021.5 out of a requested $500,000 lodestar (plus another 1.5 positive multiplier request).  All of those reductions stayed intact on appeal.

            With respect to costs, petitioners obtained no monetary relief such that the other relief was put in directly in a discretionary determination by the lower court.  The lower court denied costs based on limited success, a determination affirmed under the deferential abuse of discretion standard.  (East Bay Mun. Utility Dist. v. Dept. of Forestry & Fire Protection, 43 Cal.App.4^th 1113, 1131-1134 (1996).)

            That brought the appellate court to the fee award.  After the lodestar reductions for hourly rates, a 50% reduction for limited success by the trial judge—supported by numerous cases allowing for a deduction based on this factor—was affirmed as no abuse of discretion.

            Here are the decisions cited by the 1/2 DCA as supporting this conclusion.  (See e.g., Save Our Uniquely Rural Community Environment v. County of San Bernardino, 235 Cal.App.4th 1179, 1185 (2015) [request for $221,198; award of $19,176]; Bowman v. City of Berkeley, 131 Cal.App.4th 173, 176 (2005) [$96,592 attorney fees billed; $89,696 paid; $17,314 awarded]; San Diego Police Officers Assn. v. San Diego Police Department, 76 Cal.App.4th 19, 24 (1999); Californians for Responsible Toxics Management v. Kizer, 211 Cal.App.3d 961, 974–975 (1989) [65 percent reduction].)

            BLOG COMMENT—This likely will be our last post for 2020.  Happy New Year, readers!