Families Unafraid To Uphold Rural El Dorado County v. El Dorado County Board of Supervisors

I concur with the majority opinion to the extent it concludes the trial court abused its discretion in refusing to award fees, so that the matter should be remanded to the trial court. However, I respectfully dissent from the majority’s conclusion that the aesthetic interest of plaintiffs may serve to defeat an award of fees under Code of Civil Procedure section 1021.5. 1

In my view, the aesthetic interest of plaintiffs should not preclude an award of fees for a variety of reasons, as follows:

First, the majority’s conclusion (that an aesthetic interest may suffice to defeat an award of fees) is at odds with the holding of the California Supreme Court in Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311 [ 193 Cal.Rptr. 900 , 667 P.2d 704 ]. In Press , private citizens obtained an injunction prohibiting Lucky Stores from disallowing their efforts to gather signatures on an initiative petition in front of a shopping center. The trial court awarded the plaintiffs some $113 in attorneys fees under the private attorney general theory. Reversing that meager award, and remanding for a determination of fees, the Supreme Court said in pertinent part, “Plaintiffs’ action also fulfills…

In this environmental land use dispute, the City of Plymouth, the Foothill Conservancy, and an unincorporated association, Families Unafraid to Uphold Rural El Dorado County (known by its acronym, The Future) (collectively, plaintiffs), appeal from two orders denying their motions for attorney fees under the private attorney general theory of Code of Civil Procedure section 1021.5 (hereafter, section 1021.5).

In denying the two motions for attorney fees, the trial court concluded that plaintiffs had failed to show that their financial burden in bringing suit was *510 out of proportion to their financial interest in the suit. We conclude the trial court abused its discretion in this respect. We also conclude that plaintiffs’ nonfinancial interests in the suit, including their aesthetic interests, are a relevant factor to consider in whether to award attorney fees under section 1021.5. We therefore reverse and remand for the trial court to consider plaintiffs’ nonfinancial interests and, if the cost of litigation is out of proportion to plaintiffs’ nonfinancial interests, to determine the amount of attorney fees to award.

Background

Plaintiffs’ attorney fee requests…