Second District, Division 6 Follows Up Wilson Decision With Another Reversal In Unpublished Decision.
Yesterday, we did a post on Wilson, where the Second District, Division 6 (sitting in Ventura) reversed a portion of a private attorney general fee denial decision, determining that a portion of the work should be compensable. Some of that decision was based on reasoning from Conservatorship of Whitley, 50 Cal.4th 1206, 1211 (2010), which held that a litigant’s personal nonpecuniary interests may not be used to disqualify the litigant from obtaining fees under § 1021.5–utlizing, instead, an analytical focus on the financial burdens and incentives involved in bringing the lawsuit. Whitley, yet again, inspired a partial reversal of a fee denial in the next case.
That case, Edna Valley Watch v. County of San Luis Obispo, Case No B223653 (2d Dist., Div. 6 Feb. 15, 2011) (unpublished), involved a situation where a lower court denied private attorney general statutory fees of $35,044.50 sought by two plaintiffs successfully squelching a church project (although granting one plaintiff about 10% of requested fees of $30,424.40). The fee denial was affirmed in part and reversed in part.
The time sought for work on prior administrative hearings was denied because it was only supported by case authority in plaintiffs’ appellate reply brief. Too late, because it deprived the County of any opportunity to respond to the new arguments. (Badie v. Bank of America, 67 Cal.App.4th 799, 784-785 (1999).)
However, a different situation was presented with respect to time one plaintiff spent on his petition for writ of mandate. The lower court relied on pre-Whitley cases focusing on plaintiff’s personal nonpecuniary interest in litigation, a factor disapproved in Whitley. Because this one plaintiff had both financial as well as nonpecuniary interests in stopping project, the lower court had to reconsider his fees request without regard to his nonpecuniary interests. Matter reversed and remanded, in a 3-0 opinion authored by Presiding Justice Gilbert.
BLOG OBSERVATION–Looks like the Second District, Division 6 looks closely at private attorney general fee rulings. Just a hint for all of you following our blog.