No Appealable Order, Collateral Order Exception Did Not Apply, And Appellate Court Not Willing To Treat As Writ Petition.
Sierra Club and Carmel River Steelhead Association obviously were upset when a lower court denied their private attorney general fee request to recoup $256,934 in fees under CCP § 1021.5.
However, that denial stood up on appeal. The reason was that the lower court entered an agreed-upon stipulation and agreement to toll where the parties challenging the merits could do so again in the future such that interveners Sierra Club and Association might not be prevailing parties. Legally, the denial order was not appealable because no prior judgment had been entered in the case (meaning there was no postjudgment appealable order under CCP § 904.1(a)(2).) After noting an appellate split on whether the third element of the collateral order doctrine was required (namely, the order must direct payment of money by the appellant or performance of an act by or against the appellant), the Sixth District followed the majority view that this element was necessary. (Muller v. Fresno Community Hospital & Medical Center, 172 Cal.App.4th 289, 298 (2009).) That being said, the denial order did not satisfy the third element of the collateral order doctrine. Finally, the appellate court refused to treat the appeal as a petition for writ of mandate—judicial economy was not served because the parties dismissing their petitions without prejudice might win in the future such that Sierra Club/Association would not be prevailing parties.
The fee denial was affirmed in Monterey Peninsula Water Mgt. Dist. v. State Water Resources Control Board (Sierra Club), Case No. H039154 (6th Dist. Dec. 5, 2014) (unpublished).