Code of Civil Procedure §1021.5 Authorizes a Prevailing Party to Recover Its Attorney Fees for Administrative Time As Well As in Litigation

By William W. Abbott

In CEQA and land use litigation, project opponents who prevail in court will seek attorneys’ fees as authorized by Code of Civil Procedure section 1021.5. This code section grants a trial court the discretion to award fees in appropriate situations. In circumstances in which the opponents must first exhaust administrative remedies before filing suit, can the successful party also recover fees for the administrative time? A recent appellate decision answers the question with a "yes".

The facts involve a challenge to an approval granted to a church. An area non-profit organization (Edna Valley Watch) and a neighbor (Da Silva) filed suit. The church quickly advised the opponents that it was abandoning the approval, and later indicated it was abandoning the project. The County rescinded the approval, and the opponents then filed a motion seeking an award of fees for the administrative time, the litigation, and the fee motion. As to Edna, the trial court said there was insufficient connection between the administrative proceedings to justify compensation for the administrative proceedings. Recognizing that an opponent is generally required to exhaust administrative proceedings in CEQA and land use matters before filing litigation, the appellate court concluded that such time was eligible, and remanded it to the trial court for further proceedings.

With respect to the one neighbor, Da Silva, the trial court rejected his claim for fees, relying upon his non pecuniary interests. Subsequent to the trial court decision, the California Supreme Court decided Conservatorship of Whitley (2010) 50 Cal. 4th 1206 which held that the proper focus was on the pecuniary interests. While Da Silva argued that he had no economic interests at stake, the appellate court saw it otherwise. Agreeing in part with Da Silva, the appellate court reversed the trial court's apparent reliance on the non pecuniary interests to reject Da Silva's claim, and remanded it to the trial court to review the fee request without considering the non pecuniary interests. Edna Valley Watch v. County of San Luis Obispo (August 2, 2011, B223653) ___ Cal. App.4th ___.

William W. Abbott is an attorney at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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