Friday, September 4, 2026
Page 3
Court of Appeal:
Certification of Recall Petition Confers Public Benefit
Opinion Reverses Order Denying Attorney Fees Pursuant to Private Attorney General Statute, Disagreeing With Judge That Nothing of Value Was Attained by Lawsuit Where Election to Oust Council Member Already Slated
By a MetNews Staff Writer
The City of Grover Beach in San Luis Obispo County might be liable for the attorney fees incurred by a civic group ad two individuals in gaining an order that forced the municipality to accept a petition seeking the recall of a City Council member, under a decision by Div. Six of this district’s Court of Appeal which rejects the trial judge’s notion that no significant benefit was conferred on the public.
Presiding Justice Tari L. Cody authored the unpublished opinion, filed Wednesday. Joining in it was Justice Kenneth Yegan.
A dissent was penned by Ventura Superior Court Judge Ronda J. McKaig, sitting on assignment.
CCP §1021.5
Attorney fees were sought by Grover H20 and by Debra Peterson and Brenda Auer pursuant to a private attorney general statute, Code of Civil Procedure §1021.5, which authorize an award where “a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public” through a lawsuit. There was no such benefit, San Luis Obispo Superior Court Judge Craig van Rooyen ruled, because “regardless of this action,” a recall election was already scheduled to take place.
Another petition to recall Daniel Rushing as a lawmaker for the small city—population 12,701, according to the 2020 census—had been accepted at the time the city was ordered to certify the Grover H20 petition. Rushing was recalled in the Nov. 5, 2024 general election by a vote of 792 in favor and 638 against.
Arguing for an affirmance, the city said in its brief on appeal:
Considering the City had certified another recall petition, Appellants had the burden to show that certification of the April Recall Petition itself constituted a significant benefit to the general public. To do so, Appellants needed to show that the differences between the two recall petitions mattered in some way that benefited the public. They did not.”
It noted:
“Although the case from filing to hearing was less than a month, Appellants’ motion sought $ 151,630.56 in fees.”
Cody’s Opinion
In her opinion reversing the order denying a fee award, Cody said:
“Here, appellants’ litigation… enforced the fundamental rights of free speech and petition. Given the gravity of these rights, this enforcement conferred a significant public benefit, regardless of whether the contested statements in the petition impacted the Rushing recall effort.”
The city maintained that “statements in the petition were false” and asserted:
“Certainly, the right to submit recall petitions containing false or misleading information cannot be considered an important public right. To the contrary, there is no First Amendment right to include false and misleading information in their initiative petition.”
Cody responded:
“They assume that the statements in the recall petition are. in fact, false or misleading. But the trial court’s ruling enforced appellants’ ability to exercise their free speech and petition rights without officials unilaterally determining the truth or falsity of—and then censoring—their views….”
The presiding justice noted that §1021.5 requires a determination as to whether “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.” A remand was ordered so the trial court could address that issue.
McKaig’s Dissent
In her dissent, McKaig said:
“The majority does not address the argument actually made to the trial court and instead faults the court for failing to adopt an argument that appellants never made: namely, that their lawsuit conferred a significant benefit on the general public because it permitted all persons to ‘pursue recall petitions without the specter of unjustified official suppression.’…The court had no opportunity and was not required to consider arguments not made to it….
“Even if the record could be construed to suggest that appellants made the argument advanced by the majority, the trial court would not have abused its discretion in rejecting it.”
She remarked:
“[A]lthough the majority states the right established in the litigation broadly benefited ‘all persons.’ there are no facts in the record that support this assertion….Appellants did not identify evidence or authority demonstrating that the trial court’s ruling had any application beyond this case. Appellants did not establish the litigation impacted the 2024 election. In terms of the trial court’s directive to the City Clerk, there was no discussion of whether the Clerk’s refusal to file the original petition was a one-time event or a chronic issue. There was no evidence or argument concerning whether the City changed its practice in response to the litigation or simply abided by the court order requiring acceptance of the recall petition in this case.”
The case is Grover H20 v. City of Grover Beach, B346833.
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