Soules v. Hoofprints of the Heart Adaptive Riding Center CA1/5

Filed 12/5/13 Soules v. Hoofprints of the Heart Adaptive Riding Center CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

BARBARA SOULES, Plaintiff and Appellant, A138340 v. HOOFPRINTS ON THE HEART (Alameda County ADAPTIVE RIDING CENTER, Super. Ct. No. HG-11-601258) Defendant and Respondent.

Barbara Soules appeals from the trial court’s order denying her motion for attorney fees pursuant to Code of Civil Procedure section 1021.5.1 We affirm. BACKGROUND2 On April 26, 2011, Soules was one of five members of the board of directors (board) of respondent Hoofprints on the Heart Adaptive Riding Center, a California nonprofit public benefit corporation offering programs with horses for students with disabilities. The other four members of the board held a meeting, excluded Soules from that meeting, and voted to remove her from the board.

1 All undesignated section references are to the Code of Civil Procedure. 2 As the trial court’s findings on the merits of the petition are not challenged on appeal, we accept the facts set forth in its statement of decision granting Soules’s petition. (See City of Merced v. American Motorists Ins. Co. (2005) 126 Cal.App.4th 1316, 1322- 1323.) 1

Soules filed a petition for writ of mandate challenging this action. The trial court ruled in Soules’s favor, finding neither respondent’s bylaws nor the Corporations Code permitted the exclusion of a board member from a meeting of the board, and therefore Soules’s removal at such a meeting was improper. The trial court directed respondent to reinstate Soules as a member of the board. Soules subsequently sought attorney fees pursuant to section 1021.5. The trial court declined to award fees, finding “[t]he action did not result in the enforcement of an important right affecting the public interest” and “conferred no significant nonpecuniary benefit on the general public or a large class of persons.” This appeal followed. DISCUSSION Section 1021.5 is designed “ ‘ “. . . to encourage suits enforcing important public policies by providing substantial attorney fees to successful litigants in such cases.” ’ [Citations.] [¶] A court may award attorney fees under section 1021.5 only if the statute’s requirements are satisfied. Thus, a court may award fees only to ‘a successful party’ and only if the action has ‘resulted in the enforcement of an important right affecting the public interest . . . .’ [Citation.] Three additional conditions must also exist: ‘(a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) 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, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.’ ” . . . In deciding whether to award fees, the court ‘must realistically assess the litigation and determine, from a practical perspective, whether or not the action served to vindicate an important right so as to justify an attorney fee award under a private attorney general theory.’ [Citation.]” (Vasquez v. State of California (2008) 45 Cal.4th 243, 250-251 (Vasquez).) We review the trial court’s denial of attorney fees under section 1021.5 for abuse of discretion. (Id. at p. 251.) The trial court’s determination that Soules’s petition did not result in the enforcement of an important public right or confer a significant benefit on the general