Also, Pretrial Settlement Activity Would Have Been Futile, So Remand to Fix Fees.
In Reynolds v. City of Calistoga, Case Nos. A134190/A135501 (1st Dist., Div. 5 July 3, 2014) (unpublished), a litigant was denied CCP § 1021.5 fees under the private attorney general statute claiming entitlement as a “catalyst” on one major issue in this litigation.
The Court of Appeal agreed, reversing and remanding to fix fees for the litigant.
What happened is that litigant raised a public trust issue relating to a City dam allegedly blocking a flow of water to sustain a historic steelhead trout population. The litigant, aided by amicus briefing on the topic, eventually “pressed” the City into passing a resolution acknowledging the public trust position. The appellate court found that litigant’s nudging of significant amici help resulting in a change was enough to justify private attorney general fees.
City argued that litigant did not make any pre-litigation attempts to settle, but the record belied this. Litigant did give pretrial notice of his private and public claims, and it was clear that settlement efforts were futile anyway given that litigant’s filing of the complaint did not change their conduct on the public interest issue – that only came way down the way.
The reviewing court also observed that this was hardly a case were unscrupulous lawyers only were asking for fees; after all, litigant did litigate the case for a year in pro per before involving attorneys.
That left the cost/benefit analysis mandated under Whitley [one of our Leading Cases]. Although litigant did have a sufficient financial interest on his private damages claims, the same could not be said for his interest on public interest (steelhead trout) claims—the money spent to litigate these public-oriented issues outweighed litigant’s personal interest in the case.