United States: No Private Attorney General Fees For Homeowner

In Donald A. Norberg v. California Coastal Commission (4th Dist., Div. 3, 10/25/13, G047522) ___Cal.App.4th___, 2013, the court of appeal reversed the trial court's award of private attorney general fees because the homeowner's successful challenge of certain conditions imposed by the California Coastal Commission with respect to proposed improvements to his home did not confer a public benefit warranting an award of private attorney general fees. Norberg's successful challenge benefited Norberg and no one else; and the possibility that his successful lawsuit might convey a cautionary message to the Commission about its conduct, or that it might cause the Commission to change its practices in the future, was insufficient to satisfy the significant public benefit requirement.

Donald Norberg, as trustee of the Norberg Family Trust, filed a residential permit application with the Commission to enhance the oceanfront property in which he resided with approximately $250,000 in improvements.  The Commission, relying on an allegedly flawed interpretation of Public Resources Code section 30253, imposed certain conditions on Norberg's permit.

Norberg filed a petition for writ of mandate challenging those conditions.  The trial court issued a peremptory writ of mandate directing the Commission to set aside the challenged conditions.  Then Norberg filed a motion for private attorney general fees under the Code of Civil Procedure section 1021.5, arguing that his litigation conferred a significant public benefit.

The trial court held that Norberg was entitled to attorney fees under section 1021.5 because (1) he had vindicated important rights and conferred a significant benefit on the general public and a large class of persons, (2) the necessity of private enforcement and the financial burden made the award appropriate, and (3) Norberg received no direct pecuniary benefit because he received no monetary award and did not intend to sell his home in the foreseeable future.

The court of appeal reversed the award of private attorney general fees, holding that the issuance of the peremptory writ of mandate did not confer a substantial benefit on either the general public or a large number of persons.  Furthermore, the financial burden of the litigation was not out of proportion to Norberg's individual stake in the matter.

The Test

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: (1) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (2) the necessity and financial burden of private enforcement are such as to make the award appropriate, and (3) such fees should not in the interest of justice be paid out of the recovery, if any.  Here, the third factor does not apply because Norberg's action did not produce monetary recovery.

Enforcement of Important Right Affecting Public Interest

The court agreed that the proper application of statutory language such as that contained in Public Resources Code section 30253, is an important right.  However, the court advised that this does not mean that the private attorney general doctrine was designed to reward plaintiffs who, in pursuit of their own  interests, just happened to bring about the enforcement of a statute that benefits the public.

Factor One:  Significant Benefit Conferred on Large Class of Persons

The court held the invalidation of a permit condition affecting one parcel of privately owned real property did not confer a benefit on a large class of persons, as the issuance of the peremptory writ of mandate benefited Norberg and no one else.  The court further stated that the possibility that Norberg's lawsuit may have conveyed a cautionary message to the Commission about its conduct, or that it caused the Commission to change its practices in the future, is insufficient to satisfy the significant public benefit requirement.

Because the first of the three factors set forth in the Code of Civil Procedure section 1021.5 was not satisfied, the court could have ended there, but it moved onto the next factor regarding Financial Burden, as Norberg placed great emphasis on this factor.

Factor Two:  Financial Burden

The court found that Norberg had a financial incentive in filing his writ petition because the issuance of the writ allowed him to pursue his desired $250,000 improvements, unfettered by his concerns over the bluff edge determination and any restrictions on the future use of shoreline protective devices.

The court reversed the trial court's award of private attorney general fees.

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