Lower Court’s Denial of Fees on Personal Interest Prong Was Reversed.
In Zubarau v. City of Palmdale, Case No. 236406 (2d Dist., Div. 5 Jan. 17, 2013) (unpublished), plaintiff–who was an amateur radio enthusiast–challenged a Palmdale zoning ordinance regulating approval of his application to construct a tower antenna at his home. He lost one count eventually, but won on two counts, with the appellate court in an earlier decision remanding for a determination of whether private attorney general fees were allowable on the two successful counts.
Ham radio operator. c1921. Library of Congress.
Plaintiff moved to recover $69,500 in fees under Code of Civil Procedure section 1021.5. However, although finding all the other elements to a 1021.5 award were present, the lower court denied fees on the basis that plaintiff was protecting his personal interests rather than acting as a private attorney general in bringing the action.
Determination reversed.
Although there needed to be some weighing of costs (but self-interests alone could not be factored in), the record below showed that plaintiff at best might have salvaged his individual $5,00-$6,000 individual antenna tower investment, but certainly not the nearly $70,000 in fees actually “incurred” (more on that later). The Whitley financial burden versus financial incentive calculus, 50 Cal.4th at pp. 1215-1216, was not properly applied here, so a remand was in order.
The last argument by the defense was that plaintiff was not personally liable for incurred fees. However, a pro bono representation does not impact a party’s entitlement to fees in this and similar areas of fee entitlement. (Lolley v. Campbell, 28 Cal.4th 367, 373-374 (2002).)
Matter reversed and remanded to determine what 1021.5 fees were necessary and reasonable in nature.
![[Ham operator with his amateur radio equipment]](http://lcweb2.loc.gov/service/pnp/cph/3a40000/3a42000/3a42200/3a42259r.jpg)