Scholarly Unpublished Decision Shows Several Elements of CCP § 1021.5 Not Met.
This one presented an interesting factual situation in which the Fifth District had no difficulty in affirming a lower court’s denial of fees to a plaintiff under California’s private attorney general statute, CCP § 1021.5.
Sanctuary Merced v. Central Presbyterian Church of Merced, Case No. F060842 (5th Dist. Dec. 28, 2011) (unpublished) involved a plaintiff filing a complaint to enjoin a demolition of a church sanctuary building. Defendants filed a sanctions motion at the pleading stage, arguing the complaint was frivolous. Plaintiff voluntarily dismissed the complaint, but the trial court subsequently issued sanctions in favor of defendants. The appellate court reversed the sanctions order based on an insufficient showing. Then, plaintiff sought to recover prejudgment fees and appellate fees based on the private attorney general statute. The rationale was that plaintiff went before the Merced City Council during the action’s pendency and obtained a designation of the sanctuary as a historical site so that defendants could not demolish the building without CEQA compliance. Defendants opposed based on untimeliness and the lack of merit, with the lower court denying the fees motion.
The Fifth District sustained the denial, in an unpublished decision authored by Presiding Justice Hill.
The prejudgment fee request was untimely, filed over a year after the 180 day deadline ticking from the date of the voluntary dismissal. Plaintiff’s reliance on Citizens Against Rent Control v. City of Berkeley, 181 Cal.App.3d 213 (1986), besides being distinguishable, was too antiquated given that this older decision was not decided when the CRC 3.1702 uniform standards for filing fee motions were in force. (Sanabria v. Embrey, 92 Cal.App.4th 422, 429 (2001).) Plaintiff then brought a somewhat creative argument that the fee motion had to be brought later given that a section 1021.5 motion cannot be awarded for a frivolous complaint so that the sanctions appeal had to be determined first. Nice try, said the appellate court, but the sanctions and 1021.5 elements are different, and the earlier appellate reversal did not establish that the complaint had merit, much less restart the time for filing the fee motion.
However, the appellate fee request was timely–filed within 40 days after issuance of the remittitur in the prior appellate decision. Nevertheless, plaintiff could not gain fees under § 1021.5 based on its “catalyst” theory. Prevailing on a sanctions order did not constitute success for purposes of a private attorney general fee award. It also did not obtain the primary relief sought–it gained no injunction or other demolition restraining relief, with the subsequent actions by Merced being very fortuitous in nature.
Also, there was a lack of necessary causal connection between the lawsuit and Merced’s actions–after all, defendants did not change their behavior and third-party Merced’s actions were not shown to have been inspired at all by plaintiff’s civil action. Finally, plaintiff failed to demonstrate its action had merit–with the earlier reversal of the sanctions motion being on an evidentiary insufficiency technicality.