Second District, Division 5 Sustains Fee Denial Based on Failure to Address Fee Substantiation Inadequacies.
The next case we examine teaches a staple of appellate law: make sure you address all of the trial court’s reasons for a ruling on appeal. If you don’t, risk having the appellate court affirming based on the failure to show error—which did happen in Coastal Law Enforcement Action Network v. Cal. Coastal Comm’n, Case No. B219526 (2d Dist., Div. 5 May 13, 2010) (unpublished).
There, petitioners successfully challenged the California Coastal Commission’s approval of a coastal development permit sought by a business for an equestrian facility in the Santa Monica Mountains area of unincorporated L.A. County. They then moved to recover attorney’s fees under California’s private attorney general statute. The trial court denied fees on two grounds: (1) the challenge did not result in the enforcement of an important public right conferring a significant benefit on the general public under Code of Civil Procedure section 1021.5; and (2) the attorney declarations and fee statements attached to petitioners’ moving papers were inadequate. Specifically, the attorney declaration was made “under penalty of perjury of the laws of the United States,” rather than the California law perjury requirements of Code of Civil Procedure section 2015.5. Beyond that, the fee statement attached to the attorney declaration was too general in nature—for example, one 60 hour entry to review the record and draft points and authorities was not detailed enough.
On appeal, petitioners still wanting fees failed to challenge the fee substantiation inadequacy ground in the trial court’s ruling. They also did not include a copy of their fee motion in the appellants’ appendix. Because error will not be presumed, the failure to challenge the substantiation inadequacy constituted a forfeited review of this aspect of the lower court’s ruling.
Petitioners did put a terse sentence in their opening brief “conclusion” section about desiring to file an appropriate motion with amended declarations upon remand. This, however, was not enough and, in fact, conceded that the trial court’s ruling was correct in nature. Fee denial ruling affirmed.