SAN DIEGO (Legal Newsline) – A San Diego committee that appealed a denial for award of attorney fees lost again when an appellate court found it to be ineligible due to the nature of the case.

The California Court of Appeal, Fourth Appellate District, Division One ruled April 27 against Plaza de Panama Committee, which had successfully fought against the denial of a site development project.

The city of San Diego approved a permit for a Balboa Park project, a cultural park, that included building a bypass bridge to a new paid-parking garage for visitors. Save Our Heritage Organisation (SOHO) claimed it adversely affected several factors including natural, cultural and land preservation rights. 

In 2016, it filed a petition against the city and Plaza de Panama Committee.

The trial court agreed with portions of the complaint, and the approval was revoked. Both SOHO and Plaza appealed, but the city did not. Plaza won this judgment and filed for award of legal fees totaling $96,300. The request was denied, and Plaza appealed.

It argued that under civil procedure section 1021.5 award for attorney fees, it met the requirements and was entitled because it won a judgment that not only preserved “public interests,” but was necessary to pursue because the public notably benefited, especially since the city did not appeal. 

It said the cost of the appeal surpassed its status as just an interested party. SOHO disagreed, not with the award amount but the application of section 1021.5. It claimed an award to Plaza for attorney fees opposed the very aim of the statute, which was to support “public interest-related litigation,” so costs wouldn’t be too burdensome to pursue.

Under section 1021.5, attorney fees can be awarded to the victor of a judgment if it upholds significant public interests and protects the benefits of the public-at-large, making the defense of such a cause of action for constitutional rights (financially recoverable). Section 1021 5 also applies to any party regardless of monetary interest, be it interested party, plaintiff or defendant.

The appellate court examined the statute and found that Plaza met the three requirements. However, an exception was made in past cases, even when requirements appeared to have been met. 

That is, Plaza did not fall under the usual litigant that the award of attorney fees was intended, and SOHO did nothing that violated public benefit. The court said case law supported the practice of imposing attorney fees on the party that violated or abused the rights of the public and public interests, which SOHO was not guilty of.    

In its opinion, the court agreed that though SOHO was unsuccessful in its claim to prove the environment was harmed by the project’s approval, the enforcement of section 1021.5 was not appropriate and it should not be liable for the award of attorney fees to Plaza. The court of appeal upheld the trial court decision to deny Plaza’s request. Both parties were ordered to absorb their individual appeal costs.

Justices Judith McConnell, Gilbert Nares and Judith Haller presided on the case. Seltzer Caplan McMahon Vietk and G. Scott Williams represented Plaza. Brandt-Hawley Law Group and Susan Brandt-Hawley represented SOHO.

San Diego Court of Appeal Case Number 7-2012-00102270-CU-TT-CTL

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