In Ebbetts Pass Forest Watch et al. v. California Dept. of Forestry & Fire Protection (2010) 187Cal.App.4th 376, the Fifth District Court of Appeal was asked to determine whether the petitioners should obtain attorney fees pursuant to Code of Civil Procedure section 1021.5 for a CEQA case that resulted in a published California Supreme Court decision: Ebbetts Pass Forest Watch v. California Dept. of Forestry & Fire Protection (2008) 43 Cal.4th 936. In the 2008 Supreme Court decision, the Court upheld the trial court’s denial of the petition for writ of mandate; however, the opinion demonstrated that the California Dept. of Forestry & Fire Protection reached three legally flawed conclusions in approving the otherwise adequate timber harvest plans. Petitioners argued that the Court’s clarifications regarding the agency’s statutory authority and responsibilities conferred a significant public benefit justifying attorney fees under section 1021.5. The trial court found that petitioners were not entitled to attorney fees. In a plurality opinion, the appellate court reviewed the trial court decision for an abuse of discretion and upheld the ruling.
In rejecting the petitioners’ request for attorney fees, the Fifth District Court of Appeal acknowledged that to obtain attorney fees a favorable final judgment is not always necessary and the critical factor is the impact of the decision. (Graham v. Daimler Chrysler Corp. (2004) 34 Cal.4th 553, 565.) The court explained, however, that mere vindication of a statutory violation is not sufficient to be considered a substantial benefit by itself. (Concerned Citizens of La Habra v. City of La Habra (2005) 131 Cal.App.4th 329, 335.) In determining whether the petitioners were “successful” pursuant to section 1021.5, the court critically analyzed the surrounding circumstances of the litigation and pragmatically assessed the gains achieved by the action.
After conducting this analysis, the court concluded the petitioners lost on their primary contention, and the litigation did not result in the vindication of an important right affecting the public interest. As explained by the court, “[t]he real problem is that regardless of the expansion of the law, they did not have a factually meritorious lawsuit and, when the dust settled, their only victory was in a statement of law that when applied to the record clarified why they should lose.” In other words, the court found that to obtain attorney fees under section 1021.5 a petitioner not only “must have a well defined legal basis in order to give rise to a claim of right but . . . must also prevail on factual conclusions that support the claim of right.”
Judge Dawson dissented from the majority, explaining that a petitioner should be entitled to attorney fees where they prevail on an important legal issue but obtain no actual relief. In his dissent, Judge Dawson stated that the litigation would impact all future timber harvest plans, clarified the agency’s authority, and advanced CEQA’s goal of informed self-government. Therefore, Judge Dawson concluded the petitioners prevailed on important legal issues and should be awarded attorney fees.
In addition to disagreeing with the majority on the significance of the legal issues addressed in the published Supreme Court decision, Judge Dawson expressed an interesting concern regarding the practical impact of the majority’s holding:
I am concerned that the majority’s decision will have the unintended consequence of incentivizing plaintiffs in environmental litigation to specifically plead every foundational issue underlying their claims and perhaps include a request for declaratory relief on each of those issues. In my view, environmental litigation under California’s statutes is complex enough without applying the benefit-sought aspect of the private attorney general doctrine in a manner that incentivizes plaintiffs to increase the complexity of that litigation.