Minor Victories Do Not Support an Award of Fees Under California's Private Attorney General Doctrine

Posted on July 11, 2011 by David J. McMahon

In Center for Biological Diversity v. California Fish and Game Commission, 2011 DJDAR 6499 (2011), the California Court of Appeal for the First District rendered a decision clarifying an issue that comes up frequently under California’s so‑called “private attorney general doctrine.”

An environmental organization, the Center for Biological Diversity (the “Center”), filed suit challenging the California Fish and Game Commission's refusal to designate the American pika as eligible for endangered species protection under California’s version of the Endangered Species Act. 

The Center filed a petition for writ of administrative mandate. 

The trial court, after a contested hearing, granted the writ petition and ordered the Commission to reconsider the matter due to the potential that the trial court utilized an incorrect standard to review the Commission’s decision. 

Pursuant to the order, the Commission did reconsider its earlier ruling and reached the same decision. Upon application, the court awarded the Center significant fees and costs under Code of Civil Procedure Section 1021.5. The trial court awarded fees to the Center in the sum of $257,675 and $886.43 in costs.

The Court of Appeal reversed the decision of the lower court to award fees and costs. 

The appellate court noted that Section 1021.5 provides that a court may award attorney fees to a successful party in any action which has resulted in the enforcement of an “important right affecting the public interest.” 

The Court of Appeal noted, however, that the action must also result in significant benefits to the general public or a large class of persons. Minor revisions or rewordings are not sufficiently significant to support an award under Section 1021.5. The appellate court specifically noted that at best, the Center only achieved a minor victory which did not support the award of almost $258,000 in fees and costs.

Does Negotiating a Fee Award along with Substantive Relief Create a Conflict of Interest?

Posted on January 7, 2011 by Gary A. Bresee

An interesting article was published in California Lawyer, January 2011 issue, regarding attorneys' fees, and in particular, negotiating the amount of those fees during settlement discussions.  Negotiating Attorneys Fees, Id. at 12, "Expert Advice," by Adam W. Hofmann, from the San Francisco office of Hanson Bridgett.  The author recognizes that attorneys representing plaintiffs in civil rights and public interest cases usually bifurcate the settlement negotiations, with an attempt to reach agreement on the substantive issues first.  The right to attorneys' fees, and the amounts thereof, are typically delayed until after the substantive issues have been resolved.  Plaintiffs lawyers usually claim that bifurcation is necessary to avoid an ethical conflict between the client's claim and the lawyer's interest in getting paid.

The author argues, however, that such strategy may, in some cases, be a tactical mistake.  The tactic of negotiating the fees simultaneously with the substantive claims may arguably avoid the inherent conflict that usually arises. 

The answer is, of course, that it all depends on your case.  Negotiating the issues simultaneously, and demanding an excessive amount of fees (at least in the eyes of the defendant) could cause a stumbling block in the negotiations over the substantive claims.  Creating such an obstacle to the settlement talks at that point would mean plaintiff gets nothing, so the conflict could be real at that point.  Because many actions are driven by the fee claim -- the recovery of fees being the primary motivation for bringing suit in the first place -- the conflict of interest should always be considered.  The avoidance of that conflict is no doubt heavily dependent upon the case and the particular circumstances in each negoatiation.   

An intersting article, and worth your time to read; especially if you find yourself confronting this conflict question.

Native Americans Entitled to $239,620 in Fees By Conferring a Public Benefit

Posted on August 13, 2010 by Gary A. Bresee

An environmental group and a band of Native Americans successfully challenged various aspects of a solid waste facility landfill project in San Diego County.  The Fourth Appellate District held that the claimants were entitled to $239,620 in attorneys' fees under the Private Attorney General Doctrine, Code of Civil Procedure section 1021.5.

The City of Oceanside, RiverWatch and the Pala Band of Mission Indians filed petitions in mandate against the County of San Diego Department of Environmental Health ("DEH") contending the DEH violated, among other statutes, the California Environmental Quality Act ("CEQA").  

  1. First, the DEH argued that Claimants experienced limited success since the petition was denied in part and granted in part by the trial court, and thus RiverWatch and Pala Band were not prevailing parties under the statute.  But the court disagreed, noting that RiverWatch and Pala Band prevailed on three significant issues.
     
  2. DEH also argued Claimants failed to show that the cost of their victory was "out of proportion to [their] individual stake in the matter," one of the requirements for a fee award under section 1021.5.  DEH claimed the litigation costs did not outweigh Claimant's personal interests and they, therefore, failed to advance a significant public interest.  The court disagreed, however, finding evidence in the record that Pala Band's actions protected the interests of all Luiseno people by protecting sacred sites and protecting their ability to engage in their religion.  In fact, the court held the burden shifted to the DEH and that they failed to prove the victory involved only Claimant's individual stake in the matter.
     
  3. Finally, DEH argued Claimants failed to show "the ligitation has had a beneficial impact on the public as a whole," another requirement before a claimant is entitled to its section 1021.5 fees.  But again, the court found the action addressed traffic impacts from the project, involved the water supply and generally ensured that environmental impacts from the project were adequately mitigated.