Second District, Division 6 Upholds Fee Denial Under CCP Section 1021.5.
Under our category “Private Attorney General Statute,” we have examined the requirements—more stringent than one might assume—for awarding prevailing litigants attorney’s fees under California’s private attorney general statute (Code of Civil Procedure section 1021.5). There are many elements to satisfy, including establishment that “the necessity and financial burden of private enforcement … are such as to make the award appropriate.” (Sec. 1021.5(b).) The next litigant failed to obtain fees because he did not satisfy this essential requirement.
CEQA petitioner, in Lopate v. City of El Paso de Robles, Case No. B208066 (2d Dist., Div. 6 Apr. 22, 2009) (unpublished), challenged a senior retirement community and church expansion developments adjacent to his residence. City adopted a mitigated negative declaration under CEQA, and petitioner filed a mandate petition challenging that the City violated CEQA by not requiring a full-fledged environmental impact report. Developer abandoned the project, City rescinded its approvals, and petitioner dismissed his lawsuit. He then sought $25,833.25 in attorney’s fees under section 1021.5. City opposed, and the trial court denied the motion on the ground that the cost of litigation did not transcend petitioner’s personal stake in the lawsuit.
Disappointed petitioner appealed, but did not win—failing to meet his burden of showing entitlement under section 1021.5.
The Court of Appeal agreed with the trial court’s conclusion. The record demonstrated only that the developer abandoned the project, not that petitioner induced voluntary action by the City to prepare the EIR. Beyond that, there was support for the viewpoint that petitioner’s primary purpose in filing was to mitigate the effect of the proposed projects on his view, property value, and other property rights—clearly not satisfying the “public interest” enforcement prong, but one where pecuniary interests predominated. (See, e.g., Schwartz v. City of Rosemead, 155 Cal.App.3d 547, 559-560 (1984); Christward Ministry v. County of San Diego, 13 Cal.App.4th 31, 49-50 (1993); Planned Parenthood v. City of Santa Maria, 16 Cal.App.4th 685, 692 (1993).)