Tuesday, December 23, 2025
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Precedential Value of Decision Does Not Survive Gutting by Supreme Court, C.A. Declares
Opinion Rejects Assertion, by Group Challenging UC Housing Plan, That Reversal Does Not Destroy Legitimacy of C.A. Opinion as to Statutory Carve-Out Not Addressed by High Court
By a MetNews Staff Writer
Div. Five of the First District Court of Appeal has held that a trial court properly found that a coalition challenging a new housing development plan for UC Berkeley was not a “successful party” for purposes of a request to recover more than $1 million in public-interest attorney fees based on its partial success in an earlier appellate decision that was reversed by the high court following legislation that passed during appeal to abrogate the rulings in its favor.
Rejecting the view that the reversal did not gut the precedential value of portions of the holdings not addressed by the high court, Friday’s decision declares that “[t]he fact that the court did not reach the merits of our analyses is inapposite.”
At issue is the reach of California Rule of Court 8.1115(e)(2), which provides:
“After decision on review by the Supreme Court, unless otherwise ordered by the Supreme Court…, a published opinion of a Court of Appeal in the matter, and any published opinion of a Court of Appeal…is 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.”
Justice Gordon B. Burns authored Friday’s opinion, joined in by Presiding Justice Teri L. Jackson and Justice Mark B. Simons, saying:
“[Plaintiff] appeal[s] from a postjudgment order denying [a] motion for attorney fees.…[The group] argue[s] it was a ‘successful party’ because it secured important legal precedents when this court ruled in its favor on two issues, despite the fact that the Legislature subsequently abrogated both those holdings by statute and, accordingly, our Supreme Court reversed. We conclude that, under…[R]ule 8.1115, the Supreme Court’s reversal disapproved our opinion on those issues, meaning they are not citable precedent. We affirm.”
Fees Sought
Seeking the fees were Make UC A Good Neighbor and the People’s Park Historic District Advocacy Group (collectively referred to in the opinion as “Good Neighbor”). They sought fees under Code of Civil Procedure §1021.5, the private attorney general statute, which specifies that “a court may award attorneys’ fees to a successful party…in any action which has resulted in the enforcement of an important right affecting the public interest….”
In October 2021, the groups filed a petition for a writ of mandate against the Regents of University of California and related parties seeking to void approvals of a housing development plan for UC Berkeley. At the center of the litigation was the adequacy of an environmental impact report (“EIR”) for the proposal.
Alameda Superior Court Judge Frank Roesch denied the petition in August 2022. Div. Five reversed as to two issues, finding that the EIR should have addressed potential noise impacts of the proposal and that the report failed to adequately consider alternative locations for a project slated for development at the city’s iconic People’s Park.
After the high court granted review, the Legislature passed Assembly Bill 1307 as urgency legislation, which, as enacted, provides that “for residential projects, the effects of noise generated by project occupants…on human beings is not a significant effect on the environment” and that “institutions of public higher education shall not be required…to consider alternatives to the location” of the proposed project if certain requirements are met.
Last year, the California Supreme Court reversed Div. Five’s decision based on the new legislation, and the trial court entered judgment in the defendants’ favor.
Good Neighbor then moved for $1.17 million in attorney fees, arguing that it was a successful party because the appellate decision’s rulings on social noise and alternative locations remain good law as to non-residential projects.
Alameda Superior Court Judge Sarah Sanford-Smith denied the attorney fee request last December. Friday’s opinion affirms the denial, declaring that the fact that the Supreme Court decision is limited to residential projects “is irrelevant” and commenting:
“Having been abrogated by statute and reversed by our Supreme Court, [our opinion’s] analyses of noise and project location—including its holdings, reasoning, and dicta—are smoldering ruins, not citable precedent.”
Threshold Requirement
Saying that “[t]his case turns on the threshold requirement [of §1021.5]—success,” Burns remarked that “[t]o be successful, a party need not obtain a favorable final judgment…nor succeed on all its claims” but must prevail on a significant issue that achieves some of the benefit sought in the litigation. He wrote:
“Prior to 2016, published court of appeal opinions were automatically depublished on grant of review by the Supreme Court….Under the new rule,….[o]nce the Supreme Court issues a decision in the case, rule 8.1115(e)(2) governs its status….The question here is whether the Supreme Court’s opinion…is inconsistent with, or disapproved, the relevant parts of our opinion….If not, it remains citable, binding precedent.”
As to the assertion that the high court did not expressly “disapprove” or make findings inconsistent with the appellate court’s decision as to non-residential projects, the jurist opined:
“This is not a plausible interpretation of rule 8.1115….
“The court determined that the Legislature amended [the California Environmental Quality Act] specifically to abrogate our decision on these two issues….As a result, contrary to our opinion, the Regents’ EIR (and that of any future lead agency faced with the same issues) complies with [the law].”
He continued:
“Having determined that the decision should be reversed because of new legislation, the court was not required to further signal its disapproval by adding a gratuitous, advisory discussion of the law that existed prior to the change. Indeed, Good Neighbor’s interpretation of the rule would lead to chaos. Nearly all Supreme Court reversals would prompt arguments and uncertainty in the lower courts about exactly what parts of the reversed decision remain good law.”
However, he added:
“This does not mean, as the Regents suggest, that [the decision] is not citable or precedential on any point whatsoever. As noted, the Supreme Court did not review several [of the California Environmental Quality Act] issues on which the Regents prevailed….[T]hose parts…remain good law; the decision was reversed on other grounds.”
The case is Make UC a Good Neighbor v. Regents of University of California, A172510.
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