Special Circumstances Were Shown in This One.
Plaintiff/petitioner in Citizens for Open and Public Participation v. City of Montebello, Case No. B244106 (2d Dist., Div. 5 Dec. 23, 2013) (unpublished) sought writ relief for closed session Brown Act violations, with the lower court finding some violations but ultimately denying writ relief and petitioner’s request for attorney’s fees under Government Code section 54960.5. That determination was affirmed on appeal.
Section 54960.5, indeed, allows for discretionary awards of fees to successful Brown Act plaintiffs. To avert an award, a losing defendant must show special circumstances which would make a fee award unjust. (Galbisco v. Orosi Public Utility Dist., 167 Cal.App.4th 1063, 1083 (2008).)
Here, defendant did just that in opposing the fee request. Before the action was filed, new City Council had repudiated the bad conduct of old City Council such that petitioner accomplished “very, very little–if anything” in the lower court’s view by winning technicalities, enough for the appellate court to sustain the fee denial.