While CEQA does not provide for monetary remedies, successful petitioners may seek attorney fees at the conclusion of litigation to recoup their legal costs pursuant to Code of Civil Procedure section 1021.5, which is also known as the private attorney general statute. Section 1021.5 provides that a prevailing party may seek attorney fees when a decision results in the enforcement of an important right affecting the public interest, if a significant benefit has been conferred on the general public, and if the necessity and financial burden of enforcement make the award appropriate.
The “important right” prong considers the nature of the CEQA violation and the vindication of an important right affecting the public interest – not an individualized benefit. (Canyon Crest Conservancy v. County of Los Angeles (2020) 46 Cal.App.5th 398 (Canyon Crest); Healdsburg Citizens for Sustainable Solutions v. City of Healdsburg (2012) 206 Cal.App.4th 988, 994-995 (Healdsburg).) Satisfaction of the important right prong requires a showing that the litigation was brought with more than self-serving intent. (Healdsburg, supra, 206 Cal. App. 4th at pp. 994-995.) Creative litigants can use this to their advantage and align the protection of an important public right with their private interests. For example, in Heron Bay Homeowners Association v. City of San Leandro (2018) 19 Cal.App.5th 376, successful petitioners were motivated to file suit, in part, by their private financial interests. But, because the petitioners also expressed valid concerns regarding multiple environmental impacts, the court upheld the trial court’s award of attorney fees, finding the petitioners were not solely motivated by pecuniary interests. (Id. at pp. 390, 398.) Additionally, prevailing petitioners must actually vindicate the important right by way of the litigation to seek attorney fees. (See Canyon Crest, supra, 46 Cal.App.5th at pp. 411-412.) In Canyon Crest, petitioners successfully discouraged the project at issue without proceeding to the conclusion of the litigation, but their motion for attorney’s fees was denied for a lack of a demonstrable vindication of any right under CEQA. (Ibid.)
The “significant benefit” prong dovetails to some extent with the “important public right” prong and requires petitioners to demonstrate the litigation conferred a significant benefit on the public or a large class of people. (Canyon Crest, supra, 46 Cal.App.5th at p. 412.) The significant benefits resulting from a CEQA case do not need to be tangible to satisfy section 1021.5 – upholding a statutory policy may be sufficient. (Environmental Protection Information Center v. Department of Forestry & Fire Protection (2010) 190 Cal.App.4th 217, 233 (EPIC).) A significant public benefit exists when an action requires an agency to analyze or reassess environmental impacts associated with a proposed project. (Id. at pp. 234-235; see also Keep Our Mountains Quiet v. County of Santa Clara (2015) 236 Cal.App.4th 714, 737-738.) In determining the satisfaction of this prong, courts often consider the outcome of the litigation on future actions by public officials and the benefit to the public in having the statutory policies vindicated. (EPIC, supra, 190 Cal.App.4th 217 at pp. 234-235.)
The “necessity” of private enforcement looks to whether adequate public enforcement has occurred. (See Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1214-1215; Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal. 3d 917, 941 (Woodland Hills); see also Save Agoura Cornell Knoll v. City of Agoura Hills (2020) 46 Cal.App.5th 665, 709-710.) The “financial burden” portion of the prong is satisfied when the cost of the legal victory “transcends” the personal interest of the litigant, or when the necessity for pursuing the lawsuit places a disproportionate burden on the litigant exceeding his or her individual stake in the matter. (Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173, 181.) As with the other prongs, courts engage in a factual review to determine the magnitude of the burden placed on litigants in bringing the lawsuit juxtaposed with their personal interests. (Woodland Hills, supra, 23 Cal.3d at pp. 941-942.)
Possibly nefarious applications of the private attorney general statute are balanced against the legislative interest in protecting sincere litigants who challenge improper agency decisions for the benefit of the public. The potential for these groups to bring a meritorious suit only to be met with insurmountable legal fees could deter public participation, an outcome in contravention of CEQA’s dual purposes of protecting the environment and informing the public. Citizens frequently have common interests of significant societal importance, and the legislature intended to encourage these suits by awarding attorney fees when the personal stake is insufficient to otherwise encourage the action. (Beach Colony II v. California Coastal Com. (1985) 166 Cal.App.3d 106, 114.) Section 1021.5 was not designed to reward litigants motivated by their own personal interests who only coincidentally protect the public interest. (Ibid.)
Attorney fees are adjusted based on the relative success of the prevailing litigant. It is not enough to merely to state that counsel expended a certain number of hours representing the client. Rather, the motion must affirmatively demonstrate that the hours spent were reasonable and necessary. (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 98.) Additionally, the trial court is justified in reducing a claim if it believes the billing is unjustified. (Save Our Uniquely Rural Community Environment v. County of San Bernardino (2015) 235 Cal.App.4th 1179, 1186.) Similarly, a trial court may approve an award of attorney fees that exceeds actual billed hours in consideration of “(1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, [and] (4) the contingent nature of the fee award.” (Center for Biological Diversity v. County of San Bernardino (2010) 185 Cal.App.4th 866, 899-901 [upholding the trial court’s decision to grant a “multiplier” of 1.5 in awarding attorney fees to the petitioner].)
The party seeking attorney fees has the burden of proving that the litigation warrants an award of attorney fees and that the hours expended and the fees sought were reasonable. (Id. at p. 1184.) Once the litigation is found to have conferred a public benefit warranting attorney fees, the amount awarded under section 1021.5 is within the trial court’s discretion. (Ibid.) Rulings on fees are usually reviewed for abuse of discretion. (Canyon Crest, supra, 46 Cal.App.5th at pp. 408-409; Polanski v. Superior Court (2009) 180 Cal.App.4th 507, 537. But see Los Angeles Police Protective League v. City of Los Angeles (1986) 188 Cal.App.3d 1, 5, 7-11 [appellate court concluded only limited deference was owed to a trial court’s denial of attorney fees where the appellate court previously published an appellate decision on the same matter].)
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