Fees and Costs

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The laudable efforts of the Legislature in adopting “super statutes” such as the Housing Accountability Act (“HAA”; Gov. Code, § 65589.5) notwithstanding, housing in California remains a scarce and precious commodity.  The interplay of the HAA with another “super statute” – CEQA (Pub. Resources Code, § 21000 et seq.) – also continues to be the subject of interesting and important litigation in which the core objectives and provisions of these two statutory schemes clash and must be reconciled.  The First District Court of Appeal’s mostly published 36-page opinion in Coalition of Pacificans for an Updated Plan v. City Council of the City of Pacifica (2025) ___ Cal.App.5th ___, filed on December 30, 2025, deals with the immediate economic fallout from such a clash; the context of the decision was the parties’ post-judgment battle over attorneys’ fees in a case where the CEQA plaintiff prevailed in challenging the HAA-protected housing development approvals for a small infill project in a physically challenging location.  While the City and housing developer prevailed in their appeal of an adverse fee award, their victory might be short-lived or of limited impact in light of the narrow grounds on which the Court of Appeal reversed, and the significant discretion the trial court still retains in reconsidering the fee award on remand.  Thus, in one of the opinion’s many ironies, the case could actually represent a setback for those seeking to use the protections of the HAA to defend housing projects from being sued, and to protect local agencies and developers from hefty fee awards when such suits are successful.Continue Reading Clash of the “Super Statutes”:  First District Construes HAA’s Statutory Provisions Aimed at Disincentivizing CEQA Challenges to Housing Projects By Curbing Fee Awards

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.)Continue Reading “Student Party Noise / People’s Park Case” Epilogue:  First District Affirms Post-Judgment Order Denying Private Attorney General Fees to Losing Make UC A Good Neighbor Plaintiffs Whose Arguments Culminated in “Smoldering Ruins, Not Citable Precedent”

In a terse opinion filed September 13, and modified and ordered partially published on October 3, 2024, the Third District Court of Appeal upheld an award of reasonable record preparation cots to prevailing lead agency County of Yolo (County) in a CEQA action unsuccessfully challenging a sand and gravel mining permit and reclamation plan (project).  Yolo Land and Water Defense, et al v. County of Yolo, et al (Teichert, Inc., Real Party in Interest) (2024) 105 Cal.App.5th 710.Continue Reading Third District Holds That Lead Agency Prevailing In CEQA Action Can Recover Reasonable Record Preparation Costs Despite Petitioner’s Election to Prepare Record

On April 7, 2023, the Third District Court of Appeal filed a lengthy published opinion – the latest installment in one of the longer ongoing CEQA battles in recent memory – affirming a judgment finding an EIR for the Federal relicensing of Oroville Dam and related hydropower facilities legally adequate.  County of Butte and County of Plumas, et al v. Dept. of Water Resources  (2023) 90 Cal.App.5th 147.Continue Reading That Dam Case (Again):  Third District Upholds Oroville Hydropower Facilities Relicensing EIR Against Numerous CEQA Challenges

While CEQA is a complicated area of law, often criticized as a “plaintiff’s sandbox,” CEQA litigation is not a “free-for-all” immune from malicious prosecution actions when it is unsuccessfully pursued with malice and without probable cause.  Such is the teaching of the First District Court of Appeal’s December 28, 2022 published opinion in Charles Jenkins et al v. Susan Brandt-Hawley et al (1st Dist., Div. 2, 2022) 86 Cal.App.5th 1357, which affirmed the trial court’s order denying an anti-SLAPP motion and allowing a malicious prosecution action to proceed against a prominent CEQA attorney and her law firm.Continue Reading When CEQA Litigation Turns Tortious: First District Affirms Order Denying Anti-SLAPP Motion, Allows Malicious Prosecution Action To Proceed Against Counsel Who Brought Unsuccessful CEQA Challenge To Single-Home Project

In an opinion filed April 23, and later certified for publication on May 13, 2021, the Fourth District Court of Appeal affirmed in part an order denying an anti-SLAPP (Strategic Lawsuit Against Public Participation) motion, and held that a malicious prosecution action could proceed against losing CEQA plaintiffs who had unsuccessfully challenged a Mitigated Negative Declaration (MND), but not against their attorneys.  Jan Dunning, et al. v. Kevin K. Johnson, APLC, et al. (4th Dist. 2021) 64 Cal. App. 5th 156. While the merits of the malicious prosecution action have yet to be determined, the Court of Appeal’s ruling that the action could even proceed is itself significant given the daunting hurdle posed by the anti-SLAPP statute, and should give pause to project opponents who think that meritless CEQA litigation lacking probable cause and brought with malice can be pursued without potential consequence.
Continue Reading Is More Litigation the Remedy for Meritless CEQA Litigation? Fourth District Concludes Malicious Prosecution Action Against Losing CEQA Plaintiffs Survives Anti-SLAPP Motion

In a 74-page opinion filed February 24, and later ordered published on March 17, 2020, the Second District Court of Appeal (Division 7) affirmed judgments (granting the writ petition and awarding fees) in coordinated appeals stemming from a CEQA action successfully challenging the City of Agoura Hills’ (City) project approvals and mitigated negative declaration (MND) for a mixed use development project on an undeveloped 8.2 acre parcel.  Save the Agoura Cornell Knoll v. City of Agoura Hills (Doron Gelfand, et al., Real Parties in Interest) (2020) 46 Cal.App.5th 665.  The Court rejected the City’s and Real Parties’ procedural arguments that Petitioners and Respondents Save the Agoura Cornell Knoll (STACK) and California Native Plant Society (CNPS) had failed to exhaust administrative remedies, and that their claims were barred by lack of standing and the statute of limitations; on the merits of the CEQA claim, it held that substantial evidence in the record supported a fair argument that even as mitigated the project may have significant impacts on cultural resources (i.e., a Chumash Native American archaeological site), three sensitive plant species, native oak trees, and aesthetic resources, and that an EIR was therefore required; and it further held the trial court properly granted writ relief based on the City’s violation of its own Oak Tree Ordinance by approving a project that would concededly remove 35 to 36 percent of the site’s oak tree canopy when the Ordinance prohibited removal of more than 10 percent.  Finally, the Court held that the trial court properly awarded Petitioners STACK and CNPS $142,148 in attorneys’ fees under Code of Civil Procedure § 1021.5, made payable 50% by City and 50% by Real Parties, notwithstanding that Petitioners furnished their first amended petition to the Attorney General (AG) beyond the 10-day statutory period for doing so.
Continue Reading Second District Affirms Judgment Invalidating City of Agoura Hills’ Mixed-Use Project Approvals and Related MND Based On CEQA and Local Oak Tree Ordinance Violations

In an opinion filed June 28, and later ordered modified and published on July 27, 2018, the Second District Court of Appeal (Div. 6) affirmed the trial court’s $21,160.46 cost award in favor of a prevailing party public agency for costs associated with preparing the administrative record in a CEQA case, despite petitioner’s election to prepare the record, where the petitioner had unreasonably delayed and the agency acted reasonably.  LandWatch San Luis Obispo County v. Cambria Community Services District (2018) 25 Cal.App.5th 638.
Continue Reading Second District Affirms Order Awarding CEQA Record Preparation Costs to Agency That Took Over Process After Unreasonable Delays, Notwithstanding Petitioner’s Election to Prepare Record

It’s always nice not to lose a hard-won prevailing party cost award due to a court’s imprecise use of party designations – which can get confusing where there are multiple appeals at issue.  On October 4, 2016, the Fifth Appellate District Court of Appeal issued a two-page Order entitled “Order Modifying Opinion and Denying Rehearing [Includes Change In Judgment]” in the recently decided consolidated appeals in the Citizens for Ceres v. City of Ceres litigation.  The minor change made in the last sentence of the opinion’s disposition clarified that: (1) Respondents (City of Ceres and Real Party Wal-Mart Stores, Inc., et al.) were awarded costs as prevailing parties in the merits appeal, which affirmed the trial court’s judgment denying the writ petition challenging the EIR, statement of overriding considerations, and approval of Wal-Mart’s controversial Ceres project; and (2) Appellants (Wal-Mart, et al.) were awarded costs as prevailing parties in the separate costs appeal, which resulted in the published portion of the opinion reversing the trial court’s order taxing costs of $44,889.71 claimed by Wal-Mart for amounts it had to reimburse the City for administrative record preparation.  My post on the Court’s partially published September 12, 2016 opinion in the case can be found here.
Continue Reading Fifth District Denies Rehearing, Corrects Published Opinion And Judgment In Consolidated City of Ceres Appeals To Reflect Wal-Mart’s Cost Award As Prevailing Party On Costs Appeal