Apportionment Of Fees By HOA Helped Satisfy the “Financial Burden” Element Of CCP § 1021.5.
Heron Bay Homeowners Assn. v. City of San Leandro (Halus Power Systems), Case No. A143985 (1st Dist., Div. 4 Jan. 12, 2018) (published) is a situation where an HOA did win a CEQA biological issue “on a close call” because there was some financial incentive by HOA as far as diminished property values from the proposed project subject to CEQA challenge. Ultimately, HOA did win on a biological issue, with the trial court awarding about one half of claimed fees under the private attorney general statute to the tune of $181,471.70—after making various adjustments and giving a slight positive multiplier on some components of the fee request.
Although this is must reading in the CCP § 1021.5 area as far as apportionment, the appellate court concluded the trial judge was correct in allocating some areas of fees for the financial burden element which benefitted the HOA rather than denying fee recovery outright. In this instance, there was some proof of the financial detriment to the project on HOA property values, but that evidence was disregarded such that the benefit was uncertain and even more uncertain given that the diminution continued for several years such that it would not be “immediately bankable” as far as plaintiffs’ attorneys investing in the case. Based on these particular circumstances, the trial judge properly apportioned recovery based on the financial element of section 102.15 rather than denying recovery altogether.