In a published opinion filed March 4, 2026, the Third District Court of Appeal affirmed the trial court’s post-judgment order denying losing CEQA plaintiffs’ motion for attorneys’ fees brought pursuant to Code of Civil Procedure (“CCP”) section 1021.5 under a catalyst theory. Physicians for Social Responsibility – Los Angeles et al. v Department of Toxic Substances Control (2026) ___Cal.App.5th___. It held the trial court did not abuse its discretion in denying fees where the underlying action was adjudicated to a final judgment adverse to plaintiffs and defendant’s voluntary post-litigation actions altering an FEIR’s analysis were thus not performed under threat of judicial compulsion.
Brief Factual and Procedural Background
The underlying CEQA action sought to compel DTSC to undertake additional CEQA review in connection with its cleanup activities at a contaminated 90-acre site in southeastern Ventura County (“Area IV”). The federal Department of Energy (“DOE”) had leased Area IV from Boeing Company for decades, using it as a field laboratory for rocket and nuclear reactor manufacturing, testing, and nuclear applications until sometime in the 1980s. At issue in the CEQA litigation, which was initiated in August 2013, was DTSC’s alleged obligation to include environmental analysis of Boeing’s private activities demolishing Area IV buildings in the EIR for DTSC’s soil and groundwater remediation programs. The trial court found Boeing’s activities were not subject to discretionary public agency approval and were thus not subject to CEQA; the Court of Appeal affirmed in a prior unpublished opinion, and the Supreme Court denied review in July 2023.
The plaintiffs thus failed to obtain the relief they sought in the litigation, which they obviously lost; however, DTSC’s final EIR (FEIR), issued after the Court of Appeal’s decision, but a month before the Supreme Court’s denial of review, did analyze impacts of the remaining Boeing building demolition in order to provide a “conservative assessment” of site cleanup impacts, while expressly stating such private actions required no authorization from DTSC.
Plaintiffs seized on this fortuitous circumstance as a ground for proclaiming victory as the “catalyst” for DTSC’s augmented analysis, and moved for fees as a purported “successful party” under CCP § 1021.5, the private attorney general statute. But the trial court didn’t buy it; it denied the motion, pointing out when DTSC took the action plaintiffs claimed their litigation resulted in, judgment had already been entered in DTSC’s favor in both the trial and appellate courts. Citing to Coalition for a Sustainable Future in Yucaipa v. City of Yucaipa (2015) 238 Cal.App.4th 513 (my July 8, 2015 post on which can be found here), the trial court observed “‘[n]one of the cases applying the catalyst theory involved situations in which an adverse judgment had already been rendered against the party seeking fees.’” It further found plaintiffs’ interim “success” – they obtained a preliminary injunction in 2013 and also defeated a motion for summary judgment – did not avail them since the trial and appellate courts’ decisions on the merits ultimately found the lawsuit to be “objectively without legal merit.” (Citing Skaff v. Rio Nido Roadhouse (2020) 55 Cal.App.5th 522, 542.)
The Court of Appeal’s Opinion
The Court of Appeal agreed and affirmed. After reciting the familiar elements of a successful CCP § 1021.5 motion, and observing that a plaintiff need not always obtain a favorable judgment to satisfy the statute’s “successful party” requirement, the Court laid out the required showing for a moving party to prevail under the “catalyst theory.” Such a party must show: (1) its “lawsuit was a catalyst motivating defendants [to substantially change their behavior] to provide the primary relief sought”; (2) “the lawsuit had merit and achieved its catalytic effect by threat of victory, not by dint of nuisance and threat of expense”; and (3) it reasonably attempted to settle before filing litigation. (Citing California Public Records Research, Inc. v. County of Yolo (2016) 4 Cal.App.5th 150, 191; Tipton – Whittingham v. City of Los Angeles (2004) 34 Cal.4th 604, 608.) The trial judge’s determination as to who is the “prevailing” or “successful” party under the catalyst theory is reviewed for abuse of discretion and reversed only if there is “no reasonable basis” for it.
The Court of Appeal held the trial court here did not abuse its discretion in finding appellants could not satisfy the catalyst theory’s second element – i.e., that their suit “had merit and achieved its catalytic effect by threat of victory.” The Court was, “[a]s an initial matter of law, . . . unwilling to extend the catalyst theory [to a situation] wherein the relief sought in the underlying litigation was voluntarily provided only after the merits of the claims had been fully litigated to a final judgment against [the moving parties].” (Citations omitted.) It reasoned that while the theory may provide a pathway to fees in the absence of a judicial resolution, an award of fees is unwarranted where there has been a resolution against the moving party. Plaintiffs on the losing end of a final judgment cannot be said to have successfully prosecuted a public interest case and thus fail to meet the underlying purpose of CCP § 1021.5, i.e., to award fees to encourage successful and meritorious public interest litigation.
Per the Court: “Appellants cite no legal authority for the proposition that the catalyst theory has been applied in situations where, as here, the moving party has previously lost the underlying suit through judgment on the merits against it.” (Citations omitted.) This was, the Court observed, not a situation where the underlying action achieved success by threat of victory and was mooted before a judgment on the merits due to defendant’s voluntarily providing the relief sought. The Court “agree[d] with the trial court’s determination that a realistic assessment of this litigation, which ended in a judgment in DTSC’s favor, means appellants were not the successful party and therefore [were] not entitled to fees.”
Rejecting plaintiffs’ arguments based on the chronology of events as inconsistent with evidence presented by DTSC regarding the reasons for the timing of its EIR, the Court of Appeal flatly stated: “That the release of the final EIR came after we issued our opinion ruling in DTSC’s favor removes any possibility that the ‘threat of victory’ was the catalyst to DTSC’s actions.” Policy concerns favoring plaintiffs whose cases are so strong that they achieve the remedy sought by voluntary action under threat of judicial compulsion without being litigated to final judgment do not apply in situations where (as here) plaintiffs fully litigate their case to an unfavorable final judgment.
Conclusion and Implications
When litigating a case fully through final judgment and losing, CEQA plaintiffs don’t get a second bite at the attorneys’ fees apple under a catalyst theory that paradigmatically presupposes a meritorious case mooted by voluntary action taken by defendant under threat of judicial compulsion. Defendants should also not be penalized – by being subjected to a fee award – for undertaking voluntary action not compelled by law based on litigation in which they prevailed. The Third District’s decision in this case comports with both the law and common sense, and properly refuses to further extend the catalyst theory to a scenario in which it has never before been applied.
Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for more than sixty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, title insurance, environmental law and land use. For more information, visit www.msrlegal.com