Thursday, March 5, 2026
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Court of Appeal:
‘Catalyst’ Fees Unavailable if Changes Follow Final Judgment
Opinion Says Litigation Cannot Be Said to Have Prompted Change in Behavior That Follows Resolution on Merits in Defendant’s Favor Because No Threat of Judicial Compulsion
By Kimber Cooley, associate editor
A trial judge did not err in declining to award more than $1.6 million in attorney fees based on the theory that a non-profit environmental group catalyzed a public benefit by pursuing legal recourse against a state agency charged with nuclear testing cleanup where the relief sought by the petitioning parties was only voluntarily provided after the merits of the case had been fully litigated, the Third District Court of Appeal held yesterday.
Reasoning that the litigation cannot be said to have been the “catalyst” for the defendant’s change in behavior where there was no longer any threat of judicial compulsion, the court acknowledged that a “chronology of events” may suggest that the litigation led to the desired result but said that “we disagree that such an inference is appropriate here.”
Presiding Justice Laurie M. Earl authored yesterday’s opinion, declaring:
“[W]e are unwilling to extend the catalyst theory here 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 appellants….[T]he catalyst theory may provide a moving party a pathway to attorney fees ‘[i]n the absence of a judicial resolution.’…Considering the judicial resolution reached in this case, namely that the lawsuit lacked merit, we conclude that an award of attorney fees under the catalyst theory is unwarranted.”
Justices Harry E. Hull Jr. and Aimee A. Feinberg joined in the opinion.
Public Interest Fees
At issue is Code of Civil Procedure §1021.5, which provides:
“[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 if: (a) a significant benefit…has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement…are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery….”
Case law has established that the term “successful party” includes a plaintiff that does not prevail in court but manages to obtain its primary objectives by prompting changes to a defendant’s behavior. To obtain attorney fees under the “catalyst” theory, the moving party must establish that the litigation motivated the course correction by threat of victory and had reasonably attempted to settle out of court.
Seeking the fee award was Physicians for Social Responsibility-Los Angeles, which touts itself online as a champion of “environmental justice and nuclear abolition.”
In 2013, the group raised concerns about the ecological impact of a proposed demolition of structures located at the Ventura County-based Santa Susana Field Laboratory (“SSFL”), a site that the Boeing Company had previously leased to the government for making and testing nuclear reactions. The program ceased using the facilities for those purposes, but the soil, groundwater, and bedrock were significantly contaminated.
Petition Filed
That August, the environmental group filed a petition for a writ of mandate in Sacramento Superior Court, asserting that the proposed demolition was subject to the California Environmental Quality Act (“CEQA”) and that the Department of Toxic Substances Control (“DTSC”), the agency responsible for cleanup efforts at the site, had failed to account for the ecological impacts of the project in its reporting obligations.
On Nov. 19, 2018, Sacramento Superior Court Judge Richard K. Sueyoshi denied the petition, reasoning that the soil and groundwater remediation programs were undisputably subject to CEQA but that the demolition proposal was a private activity that was not subject to the act. After Third District affirmed, the California Supreme Court denied review in July 2023.
In June of 2023, after the Court of Appeal decision but before the high court denied review, DTSC announced that it would voluntarily include the effects of the demolition project in the environmental impact report submitted under CEQA for the facility. The nonprofit promptly moved for more than $1.6 million in attorney fees under §1021.5.
Sacramento Superior Court Judge Shelleyanne Chang denied the request in December 2023.
Primary Objective
Earl wrote:
“According to appellants, DTSC’s analysis of Boeing’s demolition ‘as if it were part of the project to provide a conservative estimate of project impacts’ means appellants obtained the primary objective of the litigation….Stating that the litigation was a catalyst for this outcome, appellants contend they are a ‘successful party’ under a catalyst theory applicable to section 1021.5 and filed a motion for attorney fees to be recovered from DTSC.”
The plaintiff cited the 2004 California Supreme Court decision in Graham v. DaimlerChrysler Corp., in which the court held that catalyst fees were appropriate after a case had been rendered moot by the fact that the defendant offered to repurchase a truck that had been marketed with false promises, as requested by the plaintiff’s lawsuit, and the company later eliminated the misleading statements.
Distinguishing the case, the jurist said:
“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.”
Rejecting the argument that public policy weighs in favor of awarding the group fees, she acknowledged that “the catalyst theory preserves important policies…by ensuring that a defendant may not litigate vigorously against a meritorious public interest case and then avoid paying attorney fees by voluntarily providing relief” and “preserves judicial resources, by encouraging a plaintiff to discontinue litigation once the defendant acquiesces.”
However, she reasoned:
“Such policy concerns are not present in this case. By litigating the underlying lawsuit for 10 years before obtaining a judgment in its favor, DTSC’s voluntary postlitigation actions did not effectuate an avoidance of attorney fees on a meritorious public issue or preserve judicial resources such that appellants should be reimbursed for attorney fees for their efforts….Here, DTSC was not under threat of judicial compulsion when it voluntarily included aspects of the demolition of Boeing’s Area IV buildings….Public policy associated with the catalyst theory is therefore not offended by the denial of appellants’ request for attorney fees in this case.”
The case is Physicians for Social Responsibility v. Department of Toxic Substances Control, C100487.
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