Second District, Division Five Dismisses Appeal as Moot Based on Settlement Agreement Reached During Appeal Process.
As we blogs have chronicled for several months, attorney’s fees recoveries can make or break a litigant—unless there is untold wealth backing the litigants in many of these situations. A prevailing litigant can gain a recovery, but it can be outstripped many times over if fees are denied because there is no fee entitlement, no “prevailing” party, or the amount requested was unreasonable or improperly substantiated. A defending party can also partially prevail, but have the fees expended exponentially eclipsing the “victory” if similar circumstances attend – no fee entitlement; no clear prevailing party; unreasonable request for fees; improper substantiation of fees (e.g., duplicative work, block billing, and failure to apportion between compensable and noncompensable work).
However, not all is lost. The system is grooved towards resolution by settlement, with a recent study suggesting that a negotiated compromise is preferable to litigating all the way to a less than idyllic conclusion. (See our post of August 13, 2008 on September 2008 upcoming study to be published in the Journal of Empirical Legal Studies.) The next case illustrates that a settlement during an appeal—even a settlement of a fee dispute—may well moot the appeal and allow the parties to go “grumbling” to other challenges in life.
Beverly Wilshire Homes Association (Assn.) obtained mandate against City of Los Angeles and developer Bevcon 1, LLC, relief by which a mitigated negative declaration was set aside until an environmental impact report had been certified. The trial court enjoined developer from further activities pending the certification and awarded Assn. attorney’s fees under the private attorney fee statute, Code of Civil Procedure section 1021.5. City and Bevcon appealed. During the appeal, the Assn. and developer reached a settlement agreement by which the merits were resolved, the developer agreed to pay unspecified fees and costs to Assn., and all litigation and appeals were dismissed after payment of fees and costs.
In Beverly Wilshire Homes Assn., Inc. v. City of Los Angeles (Bevcon 1, LLC), Case No. B201085 & B203512 (2d Dist., Div. 5 Sept. 2, 2008) (unpublished), the Court of Appeal—in a 3-0 decision authored by Presiding Justice Turner—dismissed the appeal as moot based on the settlement agreement. The appellate panel found that the settlement of issues relating to both the development project and attorney’s fees payment resolved all issues involved on appeal. No issues of broad public interest were likely to recur, no issues of recurrence between the parties were likely to recur, and no material factual questions remained for judicial determination. (Morehart v. County of Santa Barbara, 7 Cal.4th 725, 747 (1994); Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga, 82 Cal.App.4th 473, 479-480 (2000); Giles v. Horn, 100 Cal.App.4th 206, 228 (2002).) Because no mootness exceptions were established, the settlement between the parties was accorded finality—and, ta!da!—the appeal was dismissed. Goes to show you that litigation can finally end via settlement, even on appeal, and the fee recovery bleeding be stemmed. The message: don’t give up; assess your appeals, and do not be too proud to settle the fee issue during pendency of an appeal (especially one that you may not prevail upon at the end of the day).