Private Attorney General Statute: Representative Plaintiff Saving $1.278 Million For Collective Members Had Enough Financial Skin In The Game To Justify Denial of Private Attorney General Fees

Amusement park rides, Santa Cruz.  2012.  Carol M. Highsmith, photographer.  Library of Congress.

$164,812.37 Fee Request Denied.

     In Calif. Portable Ride Operators, LLC v. Cal. Div. of Occupational Safety, Case No. B242219 (2d Dist., Div. 5 Mar. 6, 2014) (unpublished), a representative plaintiff for a group of portable amusement ride (carnival) members actually invalidated a Cal OSHA regulation setting inspection and annual flat fees for certain carnival ride inspections. The problem was that Cal OSHA’s flat fees for inspections bore no relationship to the actual costs of inspection, as required by the governing statute. Then, representative plaintiff sought $164,812.37 in attorney’s fees as the prevailing party under California’s private attorney general statute.

     The trial court denied this request, a determination affirmed on appeal.

     Here, Cal OSHA did a good job of quantifying that all of plaintiff’s carnival membership would stand to gain around $1.278 million in a positive benefit, a showing never controverted by representative plaintiff. Given this substantial financial sum, fees were not justified under Whitley’s cost/benefit analysis. (California Licensed Foresters Assn. v. State Bd. of Forestry, 30 Cal.App.4^th 562, 567-568, 570 (1994).)