Fifth District Remands to Have Fee Award Decided Under the Proper Legal Standard.
This is probably a semi-POOF! (POO) post, but we would surmise that winning CEQA challenger will get still get significant fees on remand.
In Madera Irrigation Dist. v. Madera County Bd. of Supervisors (Freels), Case No. F054218 (5th Dist. Mar. 26, 2009) (unpublished), plaintiff successfully brought a CEQA challenge that the County had failed to show there was a sufficient water supply for a mixed use residential, commercial and institutional project located near the San Joaquin River. The trial court awarded plaintiff $571,237.75 in attorney’s fees under Code of Civil Procedure section 1021.5, the “private attorney general” fee statute. County appealed.
The cause was reversed and remanded because the trial court did not apply the correct legal standard. The main flaw was that the lower court framed the test as being whether plaintiff’s beneficial interest was “out of proportion” to the public’s beneficial interest and whether the public interest’s was “greater” than plaintiff’s beneficial interest. Relying on Vasquez v. State of California, 45 Cal.4th 243, 250-251 (2008) [one of our Leading Cases], the appellate panel determined that the trial court’s test was “nowhere found in the law.” (Slip Opn., at p. 9.) Aside from this mistake, the lower court failed to apply the statute’s factor “(b)” requirement that “the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate.”
However, the Fifth District did give a major victory to plaintiff on an issue raised by County under section 1021.5. It argued that section 1021.5 fees are precluded if the primary purpose in initiating litigation is the vindication of a litigant’s own interests. Not so, said the Court of Appeal. The appellate panel found nothing in Williams v. San Francisco Bd. of Permit Appeals, 74 Cal.App.4th 961 (1999), Terminal Plaza Corp. v. City and County of San Francisco, 177 Cal.App.3d 892 (1986), or Save Open Space Santa Monica Mountains v. Superior Court, 84 Cal.App.4th 235 (2000) that supported County’s position.
The case was remanded for application of the proper standard; a semi-POOF for a substantial fee award—at least at this point in time!
* * *
Have some Madeira, M’Dear