Unreported / Non-Citable
Background
Fresno voters approved Measure P, a citizen-initiated special sales tax, with 52.17 percent of the vote in November 2018. Although that was a majority, the measure's text said passage required two-thirds approval, and the City Council declared that it had failed. Fresno Building Healthy Communities (FBHC) and the City filed competing declaratory-relief actions. Howard Jarvis Taxpayers Association (HJTA) intervened on behalf of Fresno members who would pay the tax, while the City submitted a statement of neutrality and otherwise did not participate in the merits litigation. FBHC consented to intervention under an agreement that FBHC and HJTA would not seek fees from each other.
In the first appeal, the court held that a voter-initiated special tax required only majority approval and directed judgment declaring Measure P passed. In the second, it held that the City was an opposing party responsible for the action giving rise to the litigation and that FBHC qualified for private-attorney-general fees under Code of Civil Procedure section 1021.5. On remand, the trial court found the requested Fresno I lodestar of $225,460 reasonable except for a $1,062.50 duplicate-billing reduction, yielding $224,397.50, and found the Fresno II lodestar of $303,697 reasonable. It denied the 1.5 multiplier FBHC sought for the Fresno I phase; FBHC did not seek a multiplier for the Fresno II phase. The court awarded $2,796.17 in costs. It assigned 90 percent of the merits-phase fees to HJTA and 10 percent to the City. Because of the no-fees agreement, the practical result limited FBHC's merits-phase recovery against the City to $22,439.75. FBHC challenged that apportionment, while the City sought elimination of the entire award on four equitable theories.
The Court’s Holding
The Fifth District reversed the merits-phase apportionment. Section 1021.5 permits fees against opposing parties, but general adversity and active participation are insufficient. Under Connerly, an organization may qualify because it initiated or maintained the challenged policy, or because it was a real party in interest with a direct stake beyond an ideological or policy interest shared with the public. HJTA's representation of members who would pay a citywide sales tax was a generalized economic interest shared with other Fresno voters, not the required individualized interest. The court distinguished record custodians and development applicants in the authorities relied upon below because those parties' own records, applications, or entitlements were directly at issue.
The City's four arguments for denying all fees—special circumstances, breach of candor, Civil Code section 3517, and unclean hands—were forfeited. Its hearing arguments concerned apportionment and a multiplier, not complete denial, and it never invoked the equitable doctrines below. Those theories required discretionary equitable determinations rather than pure legal review. Alternatively, their premise failed: the City's complaint attributed its decision to its constitutional interpretation, and the record did not show that Measure P's text compelled the declaration of failure.
The court affirmed the $303,697 fee-entitlement-phase (Fresno II) award and reversed only the Fresno I merits-phase apportionment, directing the trial court to enter a new order awarding FBHC $224,397.50 for the Fresno I phase and $303,697 for the Fresno II phase, plus $2,796.17 in costs. It also allowed FBHC to seek appellate fees below, without deciding entitlement or amount, awarded appellate costs to FBHC, and denied the City's judicial-notice request as unnecessary.
Key Takeaways
- Active participation by an intervener does not alone make it an opposing party liable for attorney fees under section 1021.5.
- An organization's members' exposure to a generally applicable tax does not supply the direct, individualized interest required by Connerly.
- The City remained responsible for the full reasonable merits-phase lodestar because it did not challenge that calculation on appeal.
- Equitable theories seeking complete denial of fees must be presented to the trial court when they require factual and discretionary consideration.
- The remand leaves any attorney fees for this appeal to the trial court's initial determination.
Why It Matters
The decision clarifies the boundary between advocacy and fee liability in California public-interest litigation. Interveners can actively litigate without becoming opposing parties when their stake is substantially the same as that of like-minded members of the public. The opinion also separates responsibility for causing litigation from generalized support for a litigating position.
For fee proceedings, the ruling underscores that apportionment arguments do not preserve distinct requests to deny fees altogether on equitable grounds. The directed award restores the full trial-court-approved amounts while leaving appellate-fee entitlement open on remand.