Parties intervening in a CEQA case and actively litigating to defend the agency’s challenged decision in order to protect a direct and immediate interest are subject to being held jointly and severally liable for a successful plaintiff’s attorneys’ fees under Code of Civil Procedure section 1021.5, just like respondent agencies and real parties who similarly oppose such a lawsuit.  This is the lesson taught by the First District Court of Appeal (Div. 2) in its published decision, filed April 29, 2026, affirming the trial court’s $857,000 joint-and-several CCP § 1021.5 fee award against respondent Department of Pesticide Regulation (DPR), named real parties, and Croplife America (“Croplife” or “Intervenors”), a group of trade associations that had intervened to defend the CEQA litigation. Raptors are the Solution v. Croplife America (1st Dist. 2026) ___Cal.App.5th___.  Intervenors represented developers, manufacturers, formulators, and distributors of anticoagulant rodenticides which were the subject of DPR’s challenged decisions, and had successfully moved to intervene as of right in the action under CCP § 389(a) on the basis that their members had immediate, direct, and substantial financial and operational interests in the matter in litigation that would not be adequately represented by the initially named real parties or DPR.

The underlying litigation brought by CEQA plaintiff Raptors are the Solution (RATS) succeeded in producing a largely favorable unpublished appellate opinion that resulted in five of the challenged rodenticides renewed by DPR over RATS’ objections being reevaluated and a legislative moratorium being placed on their use during that reevaluation process.  Following the appeal, when RATS was unable to negotiate a settlement with all parties of its substantial attorneys’ fees and costs incurred during the lengthy litigation – and Intervenors would not even consider paying any fees at all – RATS moved for its fees.  The trial court, after finding RATS was the successful party and that CCP § 1021.5’s other elements were met, reduced the requested lodestar from $833,000 to $656,000, reduced the requested multiplier (for contingent risk) from 1.5 to 1.3, and awarded RATS $857,000 in fees and costs jointly and generally against DPR, real parties and Intervenors.  Only Intervenors appealed the award.

In short summary, the Court of Appeal, affirmed, finding Intervenors’ arguments that they merely intervened to litigate narrow policy issues disingenuous in light of the directly contrary representations in their motion to intervene, and their active and extensive participation in all aspects of the litigation for which fees were awarded.  The Court pointedly rejected Intervenors’ arguments attempting to minimize their participation and RATS’ success, as well as their improper “sub rosa attacks” on the trial court’s factual findings as actually constituting both forfeited and meritless substantial evidence challenges that violated “bedrock appellate principles.”  The Court of Appeal confirmed that intervenors defending a challenged decision are “opposing parties” against whom fees can be awarded under CCP § 1021.5; confirmed that “fault” on the part of an opposing party (i.e., in the form of enacting or enforcing the challenged decision) is unnecessary to make such an award; rejected Intervenors’ attempts to paint themselves as merely akin to amici curiae litigating ideological rather than direct pecuniary interests (as in Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169) or as falling under the narrow exemption of Adoption of Joshua S. (2008) 42 Cal.4th 945 for types of parties the statute was not intended to reach; and confirmed that the trial court’s determination not to apportion the fee award among the responsible parties was not an abuse of discretion under the circumstances.

While I don’t think the opinion really breaks new legal ground in holding that actively litigating intervenors can be on the hook for private attorney general fee awards, it does helpfully summarize and reaffirm the principles governing CCP § 1021.5 fee awards, which obviously often come into play in CEQA actions.  It also teaches an important lesson for all litigators: don’t make factual arguments in later phases of litigation that directly contradict those you made in earlier phases of the litigation, and upon which the trial court relied, as your earlier positions will invariably come back to haunt you if you do.  While the Court of Appeal did not mention or invoke the doctrine of judicial estoppel here, the content and annoyed tone of its opinion clearly bring that doctrine to mind.

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