Majority Reversed And Remanded In A 2-1 Decision Based On Free Speech Principles, While A Dissenting Justice Found No Abuse Of Discretion In The Lower Court’s Fee Denial.
The 2/6 DCA, in a 2-1 opinion in Grover H2O v. City of Grover Beach, Case No. B346833 (2d Dist., Div. 6 Sept. 2, 2026) (unpublished), had divergent views on whether a petitioner obtaining writ relief on a recall petition dispute was entitled to an award of CCP section 1021.5 attorney’s fees based on the significant benefit element of the statute.
Petitioner presented a recall petition against a local councilmember to the City clerk, who determined that two allegations had to be removed because they might be false or misleading under the Elections Code. Although removing those allegations, petitioner obtained mandate relief from the lower court, which decided that the City could not unilaterally remove language from the recall petition by making judgments that the statements might lack veracity. However, it denied petitioner’s request for private attorney general fees based on petitioner failing to show that the removal or inclusion of the two statements would have made a difference on the significant benefit prong of section 1021.5. In the end, the councilmember was recalled.
The appellate court reversed and remanded in a divided decision. The majority reasoned that a significant benefit was conferred on the public based on free-speech principles applicable to recall petitions, relying heavily on the California Supreme Court’s opinion in Lucky Stores, 34 Cal.3d at pages 316, 319, 319 at n. 7, 324. Put another way, petitioner safeguarded the public’s right against official censorship in judging the veracity of the contents of a recall petition. The dissent saw things much differently. First, the dissent believed the argument was presented in cursory fashion such that it was forfeited. Second, the dissent believed that recall petitions were deserving of more relaxed free speech protections based on the Elections Code false/misleading provisions. Third, the dissent found there was no evidence that the City clerk changed practices on recall provisions to justify a private attorney general award. In the end, this matter was remanded for the lower court to determine if other section 1021.5 elements were met, especially the financial elements under Whitley.