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In the unpublished opinion N. Coast Rivers Alliance v. Westlands Water Dist. (June 28, 2021, No. C092233) [2021 Cal. App. Unpub. LEXIS 4220], the Third District Court of Appeal held that a CEQA petitioner had not sufficiently established a nonduplicative, significant contribution to litigation warranting the award of attorney fees in light of the Attorney General’s prosecution of the matter.

Under Code of Civil Procedure section 1021.5, a party who enforces an important right affecting the public interest through litigation may be eligible to recover their attorney fees. To succeed under this provision, a party must establish, among other factors, the necessity for private enforcement.

Here, the both the Attorney General and another party (Friends of the River) filed petitions against Westlands Water District (Respondents) before North Coast Rivers Alliance (NCRA) filed their petition. Ultimately, all three petitioners successfully defended motions to transfer the respective cases, the Attorney General succeeded in securing a preliminary injunction, and all three cases settled on identical terms. Thereafter, NCRA sought attorney fees under section 1021.5. The trial court denied the motion, finding that NCRA failed to show that they rendered services necessary to the success. NCRA appealed.

The Court of Appeal upheld the ruling on the motion for fees, finding that the trial court had not abused its discretion. Under Committee to Defend Reproductive Rights v. A Free Pregnancy Center (1991) 229 Cal.App.3d 633 (Committee to Defend), when a public entity has also filed suit, a court will consider two factors to determine if the services of the private party seeking attorney fees were necessary: (1) whether the private party advanced a significant factual or legal theory adopted by the court which was nonduplicative of those advanced by the governmental entity, and (2) whether the private party produced substantial evidence significantly contributing to the court’s judgment which was not duplicative of the evidence produced by the governmental entity.

Here, the Court held that NCRA had failed to establish how their efforts in negotiating and preparing the stipulated judgment as part of the settlement satisfied either factor. Various legal theories raised by NCRA were duplicative, undisputed by respondents, and NCRA had not otherwise established that they were significant theories adopted by the trial court. And, while NCRA lawyers may have spent considerable time in the administrative process submitting comments, this was not relevant to the Committee to Defend factors. Lastly, the Court rejected NCRA’s argument that fees were warranted due to their success in resisting a motion to transfer venue, which had followed identical successes by the Attorney General and Friends of the River. As such, the Court held that the trial court had not abused its discretion by not awarding NCRA attorney fees.