CALIFORNIA ATTORNEY'S FEES

Private Attorney General: Petitioner Was Correctly Denied 1021.5 Fee For Obtaining Removal Of His Name From Gang Law Enforcement List

Petitioner Vindicated Mainly His Personal Interests And No Broad Pernicious Policy Proven Against L.A.’s Sheriff Department.

               Petitioner sought private attorney general fees in Richardson v. L.A. County Sheriff’s Dept., Case No. B333555 (2d Dist., Div. 4 Nov. 22, 2024) (unpublished) against the LASD after obtaining a court order removing his name as a suspected gang member in a database shared by other law enforcement agencies.  The lower court denied the request, a determination sustained on appeal.  Petitioner’s proceeding primarily vindicated his personal interests, and he failed to prove that LASD had a pernicious policy with respect to inclusion of names by simply using a simple checklist of factors in doing so. 

Appealability, Private Attorney General: Petitioners Obtaining Annulment Of TROs On Indoor Gatherings During COVID Not Entitled To CCP § 1021.5 Fee Recovery

$433,905 Was The Ask, But Nothing Awarded At Trial Level, Affirmed On Appeal.

               Financial incentives and avoidances are always at play in private attorney general fee requests.  Unfortunately, petitioners drew the short end of the stick at both the trial and appellate levels in Calvary Chapel San Jose v. Superior Court (6^th Dist. Sept. 30, 2024) (unpublished).

               People of the State of California obtained TROS against Chapel and its pastors to have them comply with COVID-19 health orders.  The People then commenced contempt proceedings against Chapel for violations of court orders, being granted contempt orders and monetary sanctions.  The Sixth District, in a prior opinion, annulled the orders and the sanctions, finding the indoor gatherings restrictions were unconstitutional after a SCOTUS decision that the lower court did not have the benefit of.  Chapel and one of the pastors brought an attorney’s fees motion under the private attorney general statute, seeking $433,905 in fees.  The lower court denied the request.

               The Sixth District affirmed.  It first had to face whether the order denying private attorney general fees is appealable because it occurred in the context of contempt proceedings, which are not appealable.  The appellate court decided to treat the appeal as a petition for writ of mandate for purposes of reaching the merits.  On the merits, the Court of Appeal found that Chapel’s self-interest in avoiding contempt findings and significant monetary sanctions was enough of a financial “positive side” to justify denial of the fee request, finding persuasive the reasoning in In re Head, 42 Cal.3d 223, 228 (1986).

Private Attorney General: Where Litigants Dismissed Claims Against Each Other, After Denial Of A Class Certification Motion, Defendant/Cross-Complainant Receiving No Judicial Relief Or $14 Million Class Action Objective Not Entitled To CCP § 1021.5 Fees

Published Decision Only Decided Plaintiff Had To Be Registered With State Bar, But It Did Not Adjudicate A Key Unclean Hands Defense.

               In LegalMatch.com v. Jackson, Case No. A169115 (1^st Dist., Div. 4 Sept. 26, 2024) (unpublished), defendant defended a suit by plaintiff LegalMatch.com after defendant did not pay subscription fees for connecting clients to lawyers, also filing a putative class action cross-complaint against LegalMatch.com.  In a prior appeal, the appellate court concluded LegalMatch.com was a referral service which had to register with the State Bar under Business and Professions Code section 6155, but it remanded the case for the lower court to evaluate whether defendant was barred by unclean hands because defendants violated the same B&P provision by obtaining clients through LegalMatch’s service.  On remand, the lower court denied defendant/cross-complainant’s class certification motion, with the parties voluntarily dismissing their claims against each other.

               This was not the end of the matter.  Mr. Jackson claimed success for purposes of obtaining an entitlement to private attorney general fees against LegalMatch.com in the sum of $940,000.  The lower court denied the fee request, a determination affirmed on appeal.

               Here were the problems which justified denial of the fee request because Mr. Jackson was not a successful party: (1) Mr. Jackson never obtained any judicial relief with respect to a monetary recovery or an injunction; (2) the unclean hands defense had not been adjudicated and acknowledged as important in the prior appellate opinion; and (3) Mr. Jackson did not achieve his litigation objectives of obtaining $14 million in class damages or an injunction ceasing LegalMatch.com’s operations altogether (versus Mr. Jackson’s defeat of LegalMatch’s $3,000 claim for unpaid subscription fees). 

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

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

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

Private Attorney General: $105,797.40 Fee Award To Some Validation Action Challengers Affirmed On Appeal

Fifth District Affirmed After Independent Review Of Significant Benefit Prong Because Remand Would Be Futile Under An Abuse Of Discretion Standard.

               In Westlands Water District v. All Persons Interested etc., Case No. F085374 (5^th Dist. Aug. 2, 2024) (unpublished), the Fifth District reviewed an attorney’s fees award against Water District and in favor of four challengers to a validation action filed by District, which was dismissed earlier because District’s proposed extended contract with the federal government had key missing terms.  The validation action was dismissed, with that determination affirmed in an earlier Fifth District decision which was published because it involved first impression issues.  Later, the lower court awarded the challengers $105,797.40 in attorney’s fees under CCP § 1021.5, California’s private attorney general statute.  District appealed this award, claiming the respondents were not successful, no enforcement of an important right affecting the public interest was involved, and respondents did not confer a significant benefit on the public in general.

               The Fifth District affirmed the fee award.  It had no problem finding that respondents were successful, because they obtained dismissal of the validation action—their primary litigation objective.  On the important public interest right prong of § 1021.5, it agreed that the result did vindicate the objectives of opposing validation actions and promoted transparency/accountability with respect to public contracts.  The troubling element for the appellate court was the substantial benefit element of § 1021.5.  It agreed that a Brown Act argument did not support an award under this prong, because no Brown Act violation was alleged and there were cure issues which would have been operative.  The Water Code issue was secondary to the ultimate outcome, so that did not help.  However, the publication of the prior appeal on novel issues did satisfy the substantial benefit element, such that there was no need for a remand because this rationale showed that the lower court’s ruling was no abuse of discretion, relying on its own earlier appellate opinion in Robinson v. City of Chowchilla in reaching this result.

Class Actions, Multipliers, Private Attorney General, Reasonableness Of Fees: $1.174 Million Award To Class Counsel In Fair Debt Collection Practices Case Affirmed On Appeal

Significant Benefit Incurred, If Injunctive Relief Was Considered, And Other Objections Were Not Specific To Justify Any Reduction.

               In Doskocz v. ALLS Lien Services, Case No. A166299 (1^st Dist., Div. 1 May 20, 2024) (partially published; fee discussion unpublished), class counsel prevailed on behalf of plaintiffs in case involving some novel and complex issues under the Fair Debt Collection Practices Act and unrelated case.  Class counsel moved for $1.174 million in attorney’s fees, inclusive of a 1.25 multiplier, being granted the full request.  The defense appealed, but to no avail.  A significant benefit was incurred, when both limited monetary and injunctive relief were considered in tandem.  Many other requested defense reductions were not supported with sufficient detail.  A multiplier was justified based on the factors found relevant by the lower court with respect to novel and complex issues.  The defense could not surmount the abuse of discretion standard applied to the fee issues at play.

Private Attorney General: Plaintiff’s Section 1021.5 Fee Request Properly Denied Where Trial Court Concluded That Its Government Claim/Suit Did Not Inspire Government Action On Health Permits During The Covid Pandemic

Substantial Evidence Was The Review Standard, So The Factual Finding Submarined A Catalyst Theory Challenge On Appeal.

               In Costeaux French Bakery, Inc. v. County of Sonoma, Case No. A166727 (1^st Dist., Div. 5 May 8, 2024) (unpublished), plaintiff sought private attorney general’s fees under a catalyst theory.  What basically happened was that the County undertook many efforts to help businesses during the COVID pandemic, including relief on health permits and infusions of moneys.  At the end of the effort, plaintiff filed a government claim and lawsuit, later settling and claiming it was the catalyst for the County granting relief on health permit issues.  Both the trial and appellate courts disagreed.  This was a factual determination which could go either way, but the lower court found plaintiff’s litigation was not a substantial factor in County’s actions which had been underway for months.  Fee denial affirmed given that substantial evidence supported the non-catalyst determinations.

Private Attorney General: Public Agency Prevailing Against Private Company Not Entitled To CCP § 1021.5 Fees For Succeeding In Groundwater Contamination Case

Plain Meaning Of Section 1021.5 Supported The District Court’s Denial Of Fees To Plaintiff Agency.

               In Santa Clarita Valley Water Agency v. Whittaker Corp., Case No. 22-55727 (9^th Cir. Apr. 15, 2024) (published), plaintiff water agency certainly prevailed against defendant company upon various torts and CERCLA based on alleged groundwater contamination.  Agency moved for private attorney general fees against defendant, a request denied by the district court.  The Ninth Circuit affirmed this determination, because the plain meaning of section 1021.5 only allows a public agency to obtain fees if it succeeds against another public agency—not against a private company like defendant. 

Private Attorney General, Section 998: Plaintiff’s Jury Trial Win Almost Completely Absorbed By Successful Defense 998 Offer After Reduction For Post-Offer Expenses

Also, Plaintiff’s Suit Benefitted Herself, So No Section 1021.5 Fees Were Warranted.

               Nairobi v. Watkins, Case Nos. A164665 et al. (1^st Dist., Div. 3 Mar. 28, 2024) (unpublished) shows the potency of a successful defense CCP § 998 offer:  plaintiff’s $101,768.89 jury award got reduced to just $3,772.87.  The lower court also denied plaintiff’s CCP § 1021.5 fee request because the defense did not dispute needing to comply with an Oakland inhabitability municipal ordinance and plaintiff’s suit only sought money for herself alone.  The appellate court affirmed.  The trial judge’s calculation of what plaintiff won was no abuse of discretion because plaintiff failed to develop an adequate record, especially not including the special verdict to show how damages were allocated by jurors.  Also, the lower court’s conclusions on the 1021.5 fee request were justified.

Private Attorney General: $2.317 Million Fee Request Properly Denied Where Nonprofit Petitioner Only Obtained Limited Relief With No Tangible Economic Benefit

Significant Benefit Element Of Private Attorney General Statute Was Not Satisfied.

               Nonprofit petitioner in The Affordable Housing Coalition of San Diego County v. Drager, Case No. C097016 (3d Dist. Mar. 11, 2024) (unpublished) brought a wide range of claims against governmental entities, obtaining limited relief on payment of loan reporting requirements with respect to former redevelopment agencies.  Emboldened by the relief, nonprofit requested CCP § 1021.5 fees of around $2.317 million.  The lower court denied the request based primarily on there no being significant benefit garnered.  The appellate court affirmed.  The responsible successor agencies reported on loan obligations long before the litigation.  In addition, substantial evidence in the record supported the lower court’s conclusion because no prayer was contained in nonprofit’s pleadings as to how the money should be spent, with it being dubious if there were any loans to be repaid by any of the governmental entities.

Private Attorney General: Fifth District Affirms Denial Of Section 1021.5 Fees To Plaintiff Who Had A $1,036,728 Financial Incentive And $456,935.25 In Legal Fees.

Plaintiff’s Financial Incentive, That Far Outweighed The Incurred Costs Of Litigation, Warranted Denial Of Fees, And Plaintiff’s Analysis of Heron Bay Did Not Change That Factor.

            Recovery of attorney fees under California’s private attorney general doctrine, codified at CCP § 1021.5, is reserved for “litigants and attorneys who step forward to engage in public interest litigation when there are insufficient financial incentives to justify the litigation in economic terms.” (Broad Beach Geologic Hazard Abatement Dist. v. 31506 Victoria Point LLC (2022) 81 Cal.App.5^th 1068, 1095-1096.)

            This issue of financial incentive was front and center in Malaga County Water Dist. v. Central Valley Regional Water Quality Control Bd., Case No. F084746 (Fifth Dist., February 7, 2024) (unpublished).  There, Plaintiff appealed the lower court’s denial of its request for an award of attorney fees under § 1021.5, arguing that the lower court had applied the wrong legal standard in making its determination, and had abused its discretion in setting the potential value of financial gain Plaintiff achieved through the litigation.

            The Fifth District disagreed with both contentions and affirmed.

            First, Plaintiff’s primary challenge – that the lower court applied the wrong standard – appeared to be based on its interpretation of the findings in Heron Bay Homeowners Assn. v. City of San Leandro (2018) 19 Cal.App.5th 376.  Plaintiff argued that the reversal of a $1,036,728 civil penalty against it amounted to an incentive that was too speculative to be counted because Plaintiff was possibly facing another, potentially larger, penalty subsequent to a new administrative hearing.  However, the Fifth District found that the principle in Heron Bay and others cited by Plaintiff was consistent – that the trial court should consider whether the evidence is speculative or definitive in its analysis and may discount evidence of speculative financial motivations.  To this end, the lower court had been presented with and properly considered arguments that Plaintiff’s incentive was speculative, but found that there was a direct, immediate and substantial financial benefit to Plaintiff in the form of the reversal of a civil penalty that would have otherwise depleted Plaintiff’s finances. 

            Likewise, the appellate panel found no abuse of discretion in the lower court’s valuation of Plaintiff’s financial motivation in bringing this case.  Based on the evidence, the lower court reasonably found that the civil penalty assessed against Plaintiff was a threat to its ability to operate and provided Plaintiff with sufficient financial incentive for litigating.

Private Attorney General: Lower Court’s Denial Of CCP § 1021.5 Fees Reversed And Remanded

Insured Did Vindicate Important Rights For California Insureds By Obtaining Published Affirmance Of An Insured’s Right To Videotape Insurer’s Participants In An EUO.

            In Myasnyankin v. Nationwide Mutual Ins. Co., Case No. A166946 (1^st Dist., Div. 5 Jan. 30, 2024) (partially published), by a 2-1 vote, the appellate court affirmed a lower court’s determination that an insured has the right to videotape insurer’s participants in an examination under oath (EUO) which usually occurs in connection with claim investigations.

However, the lower court denied CCP § 1021.5 attorney’s fees to the prevailing insured.

            The 1/5 DCA reversed and remanded for purposes of determining the amount of a fee award to insured in the unpublished part of the opinion. An important right having a significant benefit existed because insured won a published affirmance of an important issue which benefitted all California insureds.  Because no monetary judgment was possible, the costs of litigation per se transcended the monetary upside to insured under Whitley.

Private Attorney General: Although All Factors But Financial Benefits Were Clearly Met, Remand Was Justified To Relook at Whitley Cost/Benefit Analysis

If Analysis Was OK, Nothing Wrong With The Amount Of The $582,927 Award.

            In Grossmont Union High School Dist. v. Diego Plus Education Corp., Case No. D080295 (4^th Dist., Div. 1 Dec. 29, 2023) (published), a trial court determined that a school district should pay private attorney general fees to charter schools for prevailing on an appeal with respect to whether charter schools could operate in certain areas.  The lower court awarded $582,927 out of a requested $718,232.50, or a 19% reduction.  School district appealed.  The 4/1 DCA initially determined that an abuse of discretion review standard should apply to a trial court’s award of appellate fees even after the appellate decision on the merits.  After determining that all the CCP § 1021.5 factors were satisfied but one, the panel remanded to determine if the Whitley cost/benefit analysis (our Leading Case No. 14) under the financial benefits factor was satisfied because no real analysis was made on this issue.  If the lower court determined this factor was met, charter schools was entitled to the reduced fee award plus further appellate fees incurred in the case before the reviewing court. 

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

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

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

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

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

Appealability, Private Attorney General: Additional Defendants Were Determined To Be “Opposing Parties” Such That They Should Have Been Added As Liable For A Private Attorney General Fee Award

Additional Defendants Were Unified In Interest With Other Defendants Subject To The Fee Award.

            To recover attorney’s fees under the private attorney general statute, CCP § 1021.5, the plaintiff must recover against “opposing parties.”  Taft v. Salinas, Case No. D081025 (4^th Dist., Div. 1 Nov. 30, 2023) (unpublished) considered the scope of that language where all defendants seriously contested the case and were unified in interest, but the lower court denied fees against certain defendants because it did not consider them to be alter egos.

            Taft involved a case by a plaintiff against certain puppy stores and their owners for retail sales of non-rescue puppies which were alleged to come from breeding mills.  Plaintiff obtained a preliminary injunction, although plaintiff dismissed without prejudice after defendants moved to compel arbitration.  Plaintiff moved for attorney’s fees under Civil Code § 1717 and CCP § 1021.5, with the lower court awarding $46,500 under the private attorney general against the puppy stores but not against the owners.  Plaintiff appealed on the narrow ground that the omitted defendants should have been liable for the private attorney general fee award.

            Plaintiff won on appeal.  However, there was a jurisdictional issue to be resolved before the merits were reached.

            Defendants argued that the post-dismissal fee award was not appealable after the dismissal without prejudice.  The 4/1 DCA disagreed, finding such an award was no different from a post-dismissal routine costs award found appealable (and found persuasive by this panel through its reasoning) in Gassner v. Stasa, 30 Cal.App.5^th 346, 354-355 (2018).

            On the merits, the appellate court found that the omitted defendants were “opposing parties” responsible for the fee award under CCP § 1021.5 because they vigorously contested at all stages of the case and they were unified in interest with the defendants initially found liable for the fee award.

Civil Rights, Private Attorney General: Plaintiff’s Obtaining Of Prior Mandamus Relating To Her Nursing License Did Not Mean She Was Entitled To Private Attorney General Or Civil Rights Fees

Her Win Did Not Benefit A Large Class Of Persons, And Her Mandamus Writ Petition Was Not Litigated As A Federal Civil Rights Claim.

            In Valencia v. Board of Registered Nursing, Case No. A164976 (1^st Dist., Div. 4 Oct. 30, 2023) (unpublished), plaintiff obtained a mandamus petition win vacating certain discipline imposed by defendant Board against her nursing license.  She then moved to recoup attorney’s fees under the private attorney general statute (CCP § 1021.5) and federal civil rights statute (42 U.S.C. § 1988), requests which were both denied.  She appealed, but no changes resulted.  Plaintiff righted an injustice to her personally, but failed to obtain a result which benefited the public more broadly.  With respect to the section 1988 fee request, that was properly denied because her writ petition was not framed or litigated as a federal civil rights claim, with it also being prejudicial for the Board to address a federal claim only articulated when the administrative record was closed.

Private Attorney General: Plaintiff Non-Profit Properly Awarded CCP § 1021.5 Fees For Invalidating A Local Ordinance Which Lowered Property Intensity In Light Of Housing Shortage Concerns

1.25 Multiplier On Merits Work Was Sustained On Appeal.

            Plaintiff non-profit in Yes In My Back Yard v. City of Culver City, Case No. B321477 (2d Dist., Div. 4 Oct. 27, 2023) (published) invalidated a Culver City ordinance reducing the intensity of land use as being violative of California’s housing shortage dictates.  Then, the trial judge awarded plaintiff $131,813.58 in private attorney general fees, consisting of a 1.25 multiplier on merits work (but less than the 3.0 multiplier request).

            The Court of Appeal affirmed the fee award.  City argued that there was no significant benefit to a large class of persons, but the 2/4 DCA rejected this argument because there does not need to be a consensus in policy on addressing important issues to confer a significant benefit, especially considering the housing shortage concerns in California.  The 1.25 multiplier award was no abuse of discretion because (1) a first impression issue was involved; (2) non-profit’s attorneys obtained an excellent result; (3) the requesting attorneys’ hourly rates were lower than for commensurate L.A. cases; (4) the fee award inured to the benefit of the non-profit; and (5) the fee award would be borne by taxpayers, with the actual multiplier not being penal in nature.

Private Attorney General, Special Fee Shifting Statutes: UC Davis Student, Whose Suspension Was Overturned Through Administrative Writ Proceeding, Properly Denied CCP § 1021.5 Fees, But Matter Remanded To See If Fees Warranted Under Gov. Code § 800

Appellate Court Disagrees That An Investigation Has To Be Wholly Arbitrary Or Capricious For Section 800 Purposes.

            In Doe v. Atkinson, Case No. A166145 (1^st Dist., Div. 1 Oct. 19, 2023) (published), a lower court in an administrative writ proceeding overturned the one-year suspension of a UC Davis junior for violating sexual harassment principles, but denied his request for attorney’s fees under either the private attorney general statute, CCP § 1021.5, or Government Code section 800, which allows a plaintiff to recover up to $7,500 in fees for arbitrary or capricious actions by a public entity or its officers.  Plaintiff appealed.

            The appellate court affirmed the section 1021.5 fees denial, agreeing that the result in the case did not benefit a significant segment of the public and, at best, only a smaller segment of UC students—the main benefit was Plaintiff’s in overturning the suspension.

            But a different result occurred with respect to the section 800 fee denial.  The lower court erroneously determined that the entire investigatory actions had to be wholly arbitrary and capricious, which it did not believe to be the correct standard and criticizing the “wholly” language to the same effect in Kreutzer v. County of San Diego, 153 Cal.App.3d 62, 78 (1984).  Otherwise, very few section 800 fees would be warranted.  A remand was the “call” on the section 800 issue.

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.