Metropolitan News-Enterprise


Tuesday, March 20, 2007


Page 1


Court of Appeal: A.G. Cannot Get ‘Private Attorney General’ Fees




The state attorney general cannot be awarded fees under California’s codification of the “private attorney general” doctrine when suing on behalf of the general public, the Court of Appeal ruled Friday.

The Third District Court of Appeal overturned a Superior Court judge’s order that Tehama County pay more than $173,000 in fees for a lawsuit in which the attorney general, suing on behalf of the general public, obtained an injunction requiring the county to comply with the Subdivision Map Act.

The suit results from a lot line adjustment affecting Burr Valley Estates, a property of approximately 3,300 acres owned by KAKE, LLC. Since 1971, the property has been subject to a Williamson Act contract requiring the owner to maintain the land as agricultural in exchange for certain tax benefits.

In 1998, KAKE applied for the lot line adjustment, which the county planning director approved after determining that it did not create additional parcels. In the absence of such a finding, the Subdivision Map Act requires that a lot line adjustment for a Williamson Act property be accompanied by findings by the county supervisors that the adjustment is consistent with the requirement of agricultural use.

In 2001, the state filed suit against KAKE and the county, alleging that the adjustment violated both the SMA and the Williamson Act. The complaint alleged that the adjustment should not have been approved under the SMA because it increased the number of parcels from 24 to at least 29, and that the Williamson Act required findings by the supervisors even if the number of parcels was not increased.

The chief justice assigned retired Lassen Superior Court Judge Joseph Harvey to the Tehama Superior Court to hear the case.

Harvey agreed that the county had violated both statutes and enjoined any sale of the lots created by the adjustment until the required findings were made.

Motion for Fees

The attorney general then moved for an award of more than $500,000 in attorney fees under Code of Civil Procedure Sec. 1021.5, which provides for an award of fees to the prevailing party “in any action which has resulted in the enforcement of an important right affecting the public interest” if certain requirements are met.

One of those requirements is that “the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate.”

The trial judge granted the motion, although in an amount less than the attorney general requested. Harvey found that the county’s behavior in the matter was “obdurate.”

But in an opinion by Justice Ronald Robie, the Court of Appeal—in addition to finding that the defendant’s behavior was not a proper criterion under the statute—held that the attorney general cannot recover attorney fees when suing on behalf of the general public.

Such an award, Robie explained, would be inconsistent with the “financial burden” language in the statute.

“The Attorney General needs no encouragement to pursue litigation that is in the general interest of the state’s population because, put simply, that is his or her job,” the justice wrote. “...Rewarding the Attorney General with attorney fees for simply doing his or her job would essentially write the financial burden criterion, as it has historically been understood, out of the statute — at least where the Attorney General is concerned.”

Statewide Constituency

The justice noted that the Court of Appeal has previously denied a fee award in an environmental suit by Inyo County against the City of Los Angeles, holding that the county was primarily suing to vindicate its own interests, not those of the general public. A similar ruling, Robie added, came in a suit by Hawaiian Gardens against Long Beach over the adverse traffic effects resulting from the closure of a road between the two cities.

A local public entity may qualify for a fee award, the justice explained, if it sues for the benefit of a segment of the public greater than its own constituency. But this does not apply to the attorney general, whose constituency includes the entire state population, Robie wrote.

In an unpublished portion of the opinion, Robie said the trial judge ruled correctly on the merits of the suit. The property records introduced in evidence, he explained, showed that there were in fact fewer parcels in Burr Valley Estates before the lot line adjustment than after.

The case is People ex rel. Brown v. Tehama County Board of Supervisors, 07 S.O.S. 1286.


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