Judgment Saying “Fees According To Proof” Did Not Determine Entitlement, And Winners Did Not Satisfy Private Enforcement Element Of 1021.5.
Property owners in Citrus Heights got involved in a dispute over a private easement and overlapping public easement, with the City actually getting involved and using an offer of dedication to create a public easement largely resolving the controversy. Winning owners then sought an award of attorney’s fees under CCP section 1021.5, a request which was denied by the presiding judge after a previous assigned judge had entered a judgment inclusive of language “For attorney’s fees and costs according to proof.”
The owners denied fees did not get a reversal on appeal in Pavan v. Walmer, Case No. C073012 (3d Dist. July 10, 2015) (unpublished).
Owners first argued that the presiding judge had no jurisdiction to deny the fee request given the “according to proof” language in the assigned judge’s judgment. The appellate court did not believe this phrase meant that the assigned judge had determined fee entitlement already, given that 1021.5 fee requests are usually considered at a postjudgment stage where five elements must be satisfied under the private attorney general statute. On the merits of the fee entitlement issue, the Third District found that the lower court correctly denied it on the private enforcement issue—with the record showing that the private enforcement of the offer of dedication was not really necessary given that the City defended it well in the overall case.