Madera Oversight Coalition, Inc. v. County v. Madera, Case No. F059857 (5th Dist. Sept. 14, 2011) (unpublished).
In this one, which followed on the heels of a published decision affirming and reversing a highly contested CEQA battle, the lower court awarded plaintiffs’ counsel $270,845 and no multiplier out of a requested $460,994.11 (with the request being based on a 1.5 multiplier to a $307,329.41 lodestar), based upon Code of Civil Procedure section 1021.5. Defendants Madera County and developer appealed.
The Fifth District, in a very thoughtful decision, affirmed and in language that will help plaintiffs seeking private attorney general fees. First, plaintiffs were found “successful” based on their victory on a water supply issue, with the defense arguments conflating considerations on the “public interest enforcement” and “significant benefits” criteria of section 1021.5. Second, CEQA can be the basis to satisfy the “public interest” element, although not all provisions of CEQA create important rights. Here, however, a legally sufficient EIR bore a strong relationship to the achievement of CEQA goals such that it satisfied the element (especially on the sensitive water issue). Third, “significant benefits” were conferred based on the EIR ruling that would lead to a better informed board of supervisors and better informed public. Fourth, the Fifth District had a very interesting discussion of the “necessity and financial burden” element, which is tethered to the analysis of Conservatorship of Whitley, 50 Cal.4th 1206, 1214-1215 (2010). Private enforcement was the only real option, given that the Attorney General did not get involved As far as financial burden was concerned, the Fifth District indicated that the defense made no showing that the methodology was not satisifed and even more critically never rebutted the inference that plaintiffs derived no monetary value from the issuance of the writ and EIR decertification. Also, recovery of attorney’s fees is not among the legally relevant financial benefits that are balanced against the litigation costs, so the defense argument that this should have been considered was rejected.
United Assn. Local Union 246, AFC-CIO v. OSHA, Case No. C065265 (3d Dist. Sept. 16, 2011) (unpublished).
This case involved a trial court mandate issuance to correct an administrative board decision on improperly including an element as part of a prima facie case for OSHA violations, with the successful union requesting an award of fees under section 1021.5–a request denied by the lower court granting the mandate writ.
The Third District affirmed. The lower court correctly found that its decision had not conferred a significant benefit on the general public or large class of persons. The decision here was procedural and followed on the heels of a prior Third District decision that was controlling in effect, with the state division never taking a position that would open up examination to other than on a case-by-case basis.