However, Not All Was Lost–Fee Recovery Had To Be Reconsidered Under Catalyst Theory On Remand.
AG Land Trust v. Marina Coast Water District, Case No. H039559 (6th Dist. Nov. 17, 2014) (unpublished) is an interesting decision in the CCP § 1021.5 private attorney general area, the result largely depending on the unique procedural posture of the case.
In this one, a nonprofit plaintiff successfully challenged approval of a regional desalination project under CEQA. While an appeal was pending by the aggrieved water district, the lower court awarded plaintiff $1,285,510.90 in private attorney general fees, applying a 1.35 positive multiplier to the requested lodestar.
On appeal, however, the appellate court reversed because of mootness—California-American Water Company had withdrawn its support for the project. Technically, that meant the attorney’s fees award also went POOF!
However, not all was lost. Even though plaintiff was a non-prevailing party, the appellate court remanded to see if it could recoup fees under the catalyst theory embraced in such cases as Graham v. DaimlerChrysler Corp., 34 Cal.4th 553, 560-561 (2004) and Tipton-Whittingham v. City of Los Angeles, 34 Cal.4th 604, 608 (2004). So, there was life again—the matter was remanded for the trial court in the first instance to decide if fees were discretionarily proper under the catalyst theory.
Each side was ordered to bear their own costs on appeal.