In a published opinion filed December 19, 2025, the First District Court of Appeal (Div. 5) affirmed the trial court’s post-judgment order denying plaintiffs’ Make UC A Good Neighbor and The People’s Park Historic Advocacy Group’s (collectively, “Make UC”) motion for $1,166,097.88 in attorneys’ fees under Code of Civil Procedure (“CCP”) section 1021.5 (commonly known as the “private attorney general” statute).  Make UC A Good Neighbor et al. v. Regents of University of California et al. (2025) 117 Cal.App.5th 282. (“Make UC III”).  The Court of Appeal rejected Make UC’s argument that it was a “successful party” because it (allegedly) obtained “important legal precedents” as to two issues on which the Court had earlier ruled in its favor (in Make UC I) prior to those holdings being reversed by the California Supreme Court, as abrogated by statute, in Make UC A Good Neighbor v. Regents of University of California (2024) 16 Cal.5th 43 (“Make UC II”).  (I won’t reiterate here the detailed factual and legal history of this well-known, highly publicized, and sprawling piece of controversial litigation, but for those interested, my June 10, 2024 post on Make UC II can be found here, and my March 3, 2023 post on the Court of Appeal’s original Make UC I decision can be found here.)

The gist of Make UC’s argument that it was a successful party entitled to fees was that, despite Make UC II’s reversal of Make UC I, the latter’s holdings on social noise and location alternatives remained good law with respect to nonresidential projects.  The trial court rejected this argument and denied Make UC’s fee motion “because it was not successful on any aspect of its claims[,]” explaining that Make UC “did not receive a favorable judgment, [it] did not vindicate the principles on which [it] brought [its] action, nor did [it] achieve [its] strategic objectives of overturning the [People’s Park] Project’s approval and halting [that Project’s] construction . . . until additional environmental assessments were performed.  On the contrary, the result of [Make UC’s] petition was a legislative declaration and Supreme Court ruling that specifically establish that [the Regents] do not have to analyze the effects of the potential environmental impact of social noise on residential projects or include an analysis of alternative project locations in residential projects — the exact opposite of what [Make UC] intended.”

Reviewing the trial court’s post-judgment order denying private attorney general fees under an “abuse of discretion” standard, the Court of Appeal found no abuse of discretion and affirmed.  Make UC III turned on the threshold “successful party” requirement of CCP § 1021.5 and the Court of Appeal held the trial court properly found that Make UC had not satisfied that element.  The Court briefly reviewed the applicable principes and precedents governing this issue, noting that the “successful party” is “the party to litigation that achieves its objectives” and “vindicate[s] the principle upon which [it] brought th[e] action,” although it “need not obtain a favorable trial judgment . . . nor succeed on all its claims.”  (Citations and extra quotations omitted.)  Parties may be found to be “successful” for purposes of a CCP § 1021.5 fee award “if they succeed on any significant issue in the litigation that achieves some of the benefit they sought in bringing suit.”  (Emphasis in orig., citations and extra quotations omitted).

Evaluating Make UC’s arguments required analyzing what holdings of Make UC I still remained good law after Make UC II’s reversal.  In that regard, the Court of Appeal noted that, due to changes in the California Rules of Court after 2016, court of appeal opinions are no longer automatically depublished upon the Supreme Court’s grant of review, and instead remain published unless the Supreme Court orders otherwise.  (Cal. Rules of Ct., Rule 8.1105(e).)  After the Supreme Court issues a decision, and unless the Supreme Court has ordered otherwise, a published court of appeal opinion in the matter remains “citable and has binding or precedential effect, except to the extent it is inconsistent with the decision of the Supreme Court or is disapproved by that court.”  (Citing Rule 8.1115(e)(3), emph. Court’s.)

Make UC argued the Court of Appeal’s analyses of the student social noise and location alternatives issues were not expressly disapproved by or inconsistent with the Make UC II decision, which did not reach the merits of those issues, but reversed because the Legislature acted to narrow CEQA and eliminate its application to the residential projects at issue.  According to Make UC, the Court of Appeal’s subject “analyses [on those issues in Make UC I] remain good law as applied to future cases involving nonresidential projects” and thus constitute important precedents which its litigation had succeeded in establishing, thus supporting a fee award.

The Court of Appeal found Make UC’s argument was “not a plausible interpretation of rule 8.1115” and that the Supreme Court’s reversal in Make UC II of its two holdings in favor of Make UC constituted “unambiguous disapproval” of Make UC I in that regard.  Per the Court, the facts that the Supreme Court did not gratuitously reach the merits, or that Make UC II is limited to residential projects, are entirely irrelevant:  “Having been abrogated by statute and reversed by our Supreme Court, Make UC I’s analyses of noise and project location — including its holdings, reasoning, and dicta — are smoldering ruins, not citable precedent.”  (Citation omitted.)  On the other hand, “several CEQA issues on which the Regents prevailed in Make UC I,” including “the lower enrollment alternative, piecemealing, and displacement,” were not reviewed or addressed by the Supreme Court, nor inconsistent with the Make UC II opinion, and these portions of Make UC I remain good law under rule 8.1115(e)(2).

The “bottom line” is that, in light of the Supreme Court’s reversal with respect to “the only two issues on which [Make UC] claim[ed] success,” Make UC I has no precedential value benefitting Make UC.  Make UC “did not receive a favorable judgment, vindicate the principles on which it brought its action, or achieve its strategic objectives of overturning the projects’ approval and requiring additional environmental review.”  In fact, its litigation resulted in the exact opposite of what it intended to accomplish.  Accordingly, “the trial court did not abuse its discretion in determining that [Make UC] [was] not a successful party” and the Court of Appeal did not need to consider the parties’ additional arguments to affirm the trial court’s order denying fees.



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