Save Our Heritage Organisation v. City of San Diego

Project proponent cannot recover private attorney general fees under Code of Civil Procedure section 1021.5 because plaintiff did not act contrary to the public interest in bringing the unsuccessful suit alleging violation of various environmental protection laws.

Following Adoption of Joshua S. (2008) 42 Cal.4th 945, this decision denies a private attorney general fee award under CCP 1021.5 to the proponent of a project to revitalize Balboa Park.  While a project proponent is not categorically barred from recovering fees under 1021.5, under Joshua S. fees cannot be awarded against the plaintiff challenging a project under CEQA or similar laws unless the proponent shows that the plaintiff acted contrary to the public interest by bringing a lawsuit that sought to curtail or compromise important public rights.  Here, plaintiff did not do so but instead sought to prevent what it thought to be violations of environmental, historical preservation and land use laws by the defendants.  While unsuccessful, plaintiff’s suit was the type that 1021.5 was designed to encourage.  Awarding fees to the defendant under these circumstances would be contrary to the policy animating 1021.5 as such an award would discourage public interest litigation.

California Court of Appeal, Fourth District, Division 1 (McConnell, P.J.); April 27, 2017; 2017 WL 1505923

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