First District, Division 3 Rejects Both Procedural and Substantive Attacks to Fee Award.
Code of Civil Procedure section 1021.5 is California’s private attorney general statute, allowing fee shifting in certain public interest cases. You can learn more by accessing our “Private Attorney General Statute” category on the left hand side of our home page. However, we do find that appellate courts carefully review both the procedural and substantive bases for these types of awards, as the next case demonstrates.
A not-for-profit citizens group (plaintiff) sued Contra Costa County, the Board of Supervisors, and a developer, alleging numerous CEQA violations in connection with a proposed development of 10 acres in El Sobrante. After the appellate court reversed a prior dismissal of plaintiff’s petition, the trial court found that cumulative traffic effects had not been considered properly, although denying other claims for relief. Plaintiff requested to recoup $133,290 in fees/costs under section 1021.5, with the trial court eventually awarding $68,480 (about half) against the various defendants. Defendants appealed.
The fee award was affirmed in Friends of Garrity Creek v. County of Contra Costa, Case No. A125945 (1st Dist., Div. 3 Apr. 22, 2010) (unpublished).
Defendants first argued that plaintiff’s failure to serve the Attorney General with the original petition was preclusive, but the facts did not bear this out. The amended petition was served on the AG so that there was plenty of time for it to decide whether to intervene, distinguishing the situation from a much more tardy failure as in Schwartz v. City of Rosemead, 155 Cal.App.3d 547, 559-561 (1984).
The lower court concluded the traffic impact impropriety was not a minute blemish, but allowed other persons and organizations to weigh on the traffic issue—establishing a significant benefit under section 1021.5. (Schwartz, supra, 155 Cal.App.3d at 558; Bowman v. City of Berkeley, 131 Cal.App.4th 173, 177-178, 182 (2005).) Beyond that, the trial court did reduce the requested fees in half to demonstrate that plaintiff only had partial success in the overall litigation.
Although some personal benefit was at issue, the financial burden on plaintiff was disproportionate and a “nimby” (not in my backyard) interest alone does not disqualify a fee award under section 1021.5. (Bowman, supra, 131 Cal.App.4th at 181.)
Defendants last challenged the amount of the award, primarily arguing that plaintiff should have only been awarded one quarter of the request since it prevailed on one of four causes of action. However, nothing in Bowman required this type of “rigid proportionality,” with the lower court carefully considering and deciding the fee request.