DISCUSSION

This appeal has nothing to do with medical marijuana, preemption, or other

topics, but rather turns solely on the requirements of section 1021.5. Section 1021.5

authorizes fees for “a successful party against one or more opposing parties,” when the

action “has resulted in the enforcement of an important right affecting the public

interest,” provided certain criteria are met. (§ 1021.5, italics added.) Those criteria

include: (1) a significant benefit conferred on the general public or a large class of

3 persons; (2) the necessity and financial burden of enforcement, particularly private

enforcement, must make the award appropriate; (3) and the interest of justice precludes

payment of fees out of the successful party‟s recovery, if any. (Ibid.) In any event, the

party seeking fees must be “„“successful,”‟” which is synonymous with “„“prevailing”‟”

or otherwise achieving its litigation objectives. (Graham v. DaimlerChrysler Corp.

(2004) 34 Cal.4th 553, 570-571 (Graham).)

The burden is on the claimant to demonstrate it is entitled to fees, including

that its litigation costs transcend its personal interest in the litigation and should be

shifted in the public‟s interest to the other parties. (Save Open Space Santa Monica

Mountains v. Superior Court (2000) 84 Cal.App.4th 235, 246.) On appeal, we review a

trial court‟s award or denial of attorney fees for abuse of discretion, and we must presume

the trial court acted within its discretion. (Collins v. City of Los Angeles (2012)

205 Cal.App.4th 140, 152-153.)

Qualified Patients argues it is entitled to attorney fees because it was

successful on its initial appeal in overturning the demurrer. Qualified Patients

characterizes our holding in the first appeal that federal law did not trump state medical

marijuana law as a “landmark” decision worthy of attorney fees for its efforts in pursuing the appeal. But as we noted in the opinion, we were not even the first California court to

do so. (See County of San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798,

822-823.)

More importantly, however, the Supreme Court, has expressly cautioned

that “[a]ttorney fees should not be awarded for a lawsuit that lacks merit, even if its

pleadings would survive a demurrer.” (Graham, supra, 34 Cal.4th at p. 576.) We only

determined in Qualified Patients I that the pleadings were sufficient to survive demurrer,

4 and only because the city obtained demurrer by invoking federal law, which did not

suffice. Such interim success does not serve as a basis for attorney fees under

section 1021.5. (Ebbets Pass Forest Watch v. California Department of Forestry & Fire

Protection (2010) 187 Cal.App.4th 376, 387-388 [“regardless of the expansion of the

law, [plaintiffs] did not have a factually meritorious lawsuit and, when the dust settled,

their only victory was in a statement of the law”]; accord, Karuk Tribe of Northern

California v. California Regional Water Quality Control Bd., North Coast Region (2010)

183 Cal.App.4th 330, 334-335 [interim success on writ of mandate insufficient].) In

Miller v. California Com. on Status of Women (1985) 176 Cal.App.3d 454, 455, the

appellate court described as “an amazing display of chutzpah” the losing party‟s request

for attorney fees because it enjoyed interim success in having summary judgment

overturned, only to lose the case at trial. Whether the characterization is apt here or not,

it remains true that the party requesting fees must ultimately gain its litigation objectives,

which Qualified Patients manifestly failed to do when it sought attorney fees.

Qualified Patients mistakenly relies on Maria P. v. Riles (1987) 43 Cal.3d

1281 (Maria P.) and similar cases for the proposition that “„an attorney fee award may be

justified even when plaintiff’s legal action does not result in a favorable final judgment.‟” (Boldface added to quoted italics.) In Maria P., the plaintiffs obtained a

preliminary injunction and only dismissed their case because intervening legislation in

their favor rendered their claims moot. Specifically, they filed suit to prevent a school

district from reporting student immigration status to federal authorities, and the trial court

granted their request for a preliminary injunction, which became moot with repeal of the

statute requiring the district to report the information. Because they had obtained all the

relief they sought, the trial court properly granted their fee request. (Maria P., at

5 p. 1291.) That is not the case here. Qualified Patients failed in its primary litigation

objective of preventing the city from closing its dispensary, and therefore the trial court

did not abuse its discretion in denying the fee motion.

III

DISPOSITION

The trial court‟s order denying attorney fees is affirmed. The city is

entitled to its costs on appeal.

ARONSON, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

FYBEL, J.

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