Recovering Attorneys Fees Where Your Public Interest Lawsuit Has Limited Success

Under California law, a private citizen can bring a lawsuit specifically intended to address the ills or injustices in society.  Recognizing that such lawsuits are highly risky and may be prohibitively expensive, in 1977, California passed a law often referred to as the Private Attorney General’s Act (“PAGA”).  Under PAGA, found at California Code of Civil Procedure Section 1021.5, a party is entitled to an award of reasonable attorney fees for bringing a lawsuit intended to improve the public interest if four criteria are met: (1) he is the “successful party”; (2) his lawsuit has enforced an important right affecting the public interest; (3) a significant benefit has been conferred on the general public or a large class of persons; and (4) the necessity and financial burden of private enforcement are such as to make an award of fees appropriate.

Under PAGA, a litigant may recover attorneys fees even if he achieves a significant public benefit even if he fails to achieve the ultimate goal of the litigation.  A plaintiff may be deemed a “prevailing” or “successful” party warranting an award of attorney’s fees if he succeeds on “any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.”  Maria P. v. Riles (1987) 43 Cal.3d 1281, 1292, Bowman v. City of Berkeley, 131 Cal. App. 4th 173, 178.

A major California case supporting an award of attorneys fees where the lawsuit results in a limited but significant success is the California Supreme case of Harbor v. Deukmejian (1987) 43 Cal.3d 1078.  In Harbor, the litigants brought the lawsuit to invalidate the California Governor’s veto of a welfare statute that would have increased aid to families with dependent children.  Although the litigants failed to win any increase in aid to families with dependent children, the California Supreme Court ruled that they were still entitled to attorneys fees because the litigation had significantly clarified the extent of the Governor’s veto power.  As the Clourt stated, “Our decision will result in enforcement of an important right affecting the public interest, conferring a “significant benefit” on the general public in clarifying the extent of the Governor’s veto power…”

If you have identified a particular societal ill that the legislature or the courts have not addressed, explore whether a litigation is feasible in light of the PAGA.

-Posted by Bennett M. Cohen, June 13, 2017

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