In 1968, the Legislature enacted a statutory scheme to protect the State's
ecological reserves to, in turn, protect threatened or endangered native plants, wildlife, or
aquatic organisms. (Fish & Game Code, §§ 1580 et seq.) Under Fish and Game Code
section 1580, the Fish and Game Commission (Commission) has the authority to "adopt
regulations for the occupation, utilization, operation, protection, enhancement,
maintenance, and administration of [the State's] ecological reserves." Except as the
Commission's regulations allow, it is unlawful for persons to enter upon any ecological
reserve.2 (Fish & Game Code, § 1583.)
1 All statutory references are to the Code of Civil Procedure unless otherwise specified.
2 Fish and Game Code section 1583 provides: "Except in accordance with the regulations of the [C]ommission it is unlawful to enter upon any ecological reserves . . . ."
2
Apparently in or about 1975, the Commission adopted a regulation that designated
Magnesia Spring Ecological Reserve (Reserve) in Riverside County as an ecological
reserve. (Cal. Code Regs., tit. 14, § 630(b)(76).) That regulation states in part: "Visitor
uses are dependent upon the provisions of applicable laws and upon a determination by
the [C]ommission that opening an area to such visitor use is compatible with the purposes
of the property. Visitor use is subject to the regulations below, in sections 550 and 550.5
of these regulations, as well as any other [C]ommission regulations that may apply."
(Cal. Code Regs., tit. 14, § 630(a).) That regulation further provides that the Department
owns and operates the Reserve and other ecological reserves listed in the regulation.
(Cal. Code Regs., tit. 14, § 630(b).) In or about 1976, the Department apparently adopted
a wildlife management plan for the Reserve, which provided that "[e]nforcement of laws
pertaining to [the Reserve] should be the responsibility of the Department." In or about
2007, the Department apparently adopted a multi-species habitat conservation plan,
which stated that "[u]se of trails on [the Department's] land is subject to [California Code
of Regulations] Title 14." It also contemplated that the "Bump and Grind" portion (Trail)
of the Mirage Trail would be decommissioned and removed by the Department in the
future.
In January 2012, Assembly Bill No. 284 was introduced to enact a statute allowing
access to the Trail. That bill apparently expired, or "died," pursuant to the California
Constitution for lack of timely passage. (Cal. Const., art. IV, § 10(c).) In March 2012, a
new bill, Assembly Bill No. 880, was introduced that contained the same language as the
prior bill to enact a statute (i.e., Fish & Game Code, § 1587) allowing access to the Trail.
3
Assembly Bill No. 880 was ultimately passed, enacting former Fish and Game Code
section 1587,3 effective as of January 2013, which provided:
"(a) The Mirage Trail within the [Reserve] shall be open nine months of the year to recreational hiking, if the[C]ommission determines that the following conditions are met: [¶] . . . [¶]
"(b) The [C]ommission shall determine seasonal openings and closures of the trail that will not conflict with the use of the area by Peninsular bighorn sheep, consistent with subdivision (a). . . ." (Former Fish & Game Code, § 1587, italics added.)
On May 15, 2012, Carian filed the instant petition and complaint against
Defendants, alleging causes of action for a writ of mandate directing the Department to
reopen the Trail, taxpayer relief, quiet title to public easement, and declaratory relief.
Defendants demurred to the petition and complaint. The trial court issued a tentative
ruling sustaining Defendants' demurrer. On August 16, the trial court heard arguments of
counsel and initially took the matter under submission. However, on September 11, the
court vacated its order taking the matter under submission and set a further hearing on the
demurrer, stating that if the Governor signed Assembly Bill No. 880, which had recently
been passed by both houses of the Legislature, the new law would have a significant
effect on the demurrer. On September 25, the Governor signed Assembly Bill No. 880,
which added former section 1587 to the Fish and Game Code. (Stats. 2012, ch. 527, § 1.)
At the October 15 hearing on Defendants' demurrer, Carian, in effect, conceded the new
3 Fish and Game Code section 1587 was amended in 2013. (Stats. 2013, ch. 76 (A.B. 383), § 63; Stats. 2013, ch. 594 (A.B. 1097), § 1.)
4
statute made his lawsuit moot. The court sustained Defendants' demurrer without leave
to amend.
In January 2013, Carian filed a motion for attorney fees under section 1021.5. In
seeking an award of $100,000 in attorney fees against Defendants, Carian argued that his
lawsuit was necessary to enforce an important right affecting the public interest and
conferred a significant benefit on the general public by causing the State to open the
Trail. In support of his motion, he submitted a declaration of Eli Underwood, his
counsel, in which Underwood stated that "[b]ecause of this suit, the State of California
opened the trail." Carian also submitted a declaration of State Assemblyman Brian
Nestande, in which Nestande stated that Carian's lawsuit "was a material factor,
demonstrably influential, a substantial contribution, and one of the catalysts in helping to
get [Assembly Bill No.] 880 codified into law because it helped to focus the Legislature's
attention on whether the trail needed to be closed the entire year or whether it could only
be closed a few months out of the year." Carian also submitted a similar declaration of
State Assemblyman V. Manuel Perez containing a statement identical to Nestande's
statement quoted above.
Defendants opposed Carian's section 1021.5 motion for attorney fees, arguing
Carian was not a "successful party" under the catalyst theory. Citing Graham v.
not made a reasonable attempt to settle the dispute before filing his lawsuit and therefore
could not recover attorney fees under section 1021.5. Defendants argued Carian did not
make any reasonable settlement attempt because he "never pursued the established
5
administrative remedy to resolve his grievance via the Commission (Fish & [Game]
Code, § 1583) . . . ."
In reply, Carian argued that he made a reasonable attempt to settle the dispute
prior to filing his lawsuit, citing his October 2011 meeting with Nicol regarding
reopening the Trail and his February 2012 notice to the Attorney General of his intent to
seek to reopen the Trail. In support of his reply, Carian submitted his own declaration in
which he stated he met with Nicol on October 11, 2011, and requested the top portion of
the Trail be reopened to the public. He further stated that after Nicol initially agreed to
conditionally reopen the Trail, she purportedly withdrew those conditions in an April
2012 letter. Carian also submitted Underwood's reply declaration in which he stated that
on or about February 12, 2012, he conveyed to a deputy attorney general Carian's
proposal to settle his separate Public Records Act lawsuit against the Department. That
proposal included terms to reopen the Trail. Underwood stated that when Carian's
proposal was rejected by the deputy attorney general, Underwood told him the issue
would be dealt with in a separate suit.
On May 28, 2013, the trial court issued an order denying Carian's motion for
attorney fees under section 1021.5. The court found Carian "did not make a reasonable
settlement effort before bringing this lawsuit" and referred to its reasons set forth in its
attached April 16 ruling, which stated in part:
"More persuasive is [Defendants'] argument that [Carian] failed to make a reasonable settlement attempt before bringing the action, something that [Carian] argues he did by meeting with respondent Nicol and informing her of his interest in reopening the trail and informing the attorney general before filing this action. [Carian]
6
accurately quotes a portion of the Graham opinion stating that at a minimum a plaintiff must notify the defendant of his or her grievances and proposed remedies and give the defendant the opportunity to meet the demands within a reasonable time. [Citation.] As the Supreme Court stated, however, 'what constitutes a "reasonable" time will depend on the context.' [Citation.] As do, in this Court's view, what are reasonable settlement efforts. While in some circumstances, such as where a violation of the petitioner's rights and the remedy is clear, simple notification and explanation of the requested remedy might be sufficient to constitute a reasonable settlement effort. But often this will only be a starting point for reasonable settlement efforts. Indeed, many cases, particularly cases such as this one where the factual background and potential settlement are complicated, require more.
"[Defendants] contend[] that [Carian] did not pursue 'an established administrative remedy' in an effort to resolve his grievances through the Fish and Game Commission. As [Defendants] point[] out, a legislative analysis of [Assembly Bill No.] 880 includes the comment that the legislation might not have been necessary had someone—such as [Carian]—'asked the [C]ommission for its assistance on this matter, which seems to be a significant omission by the proponents.' [Citation.] The Supreme Court stated that the purpose of requiring reasonable settlement efforts is to ensure that subsequent litigation is truly necessary: 'Awarding attorney fees for litigation when the rights could have been vindicated by reasonable efforts short of litigation does not advance that objective and encourages lawsuits that are more opportunistic than authentically for the public good.' [Citation.]
"[Carian] does not address the substance of this argument, instead arguing [Fish and Game Code section 1583] is entitled 'trespass' and does not prescribe an administrative remedy.
"[Carian] offers no evidence that it would have been futile to have made further settlement efforts, in particular, to have gone to the Fish and Game Commission for assistance or that such efforts would be, in our Supreme Court's words, 'lengthy pre-litigation negotiations.' This Court certainly does not find that in every instance a plaintiff must go through a government agency's preferred procedures to meet the requirement that it make a reasonable settlement attempt. But on the record before it, and given that [Carian] failed to even argue that it would have been futile or
7
excessively time consuming to approach the Commission as suggested in the legislative analysis, the Court finds [Carian] failed to make a reasonable settlement effort before bringing this lawsuit and therefore is not entitled to recover attorney's fees under section 1021.5." (Italics added, fn. omitted.)
Because the court decided the motion on that ground, it declined to address the remaining
issues. Carian timely filed a notice of appeal.
DISCUSSION
I
Section 1021.5 and Graham's Catalyst Theory
Under section 1021.5, a trial court may award attorney fees to a "successful party"
in an action that has "resulted in the enforcement of an important right affecting the
public interest if: (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 . . . 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. . . ." The
courts have taken a "broad, pragmatic view of what constitutes a 'successful party.' "
(Graham, supra, 34 Cal.4th at p. 565.) Section 1021.5 attorney fees may be awarded
"even when plaintiff's legal action does not result in a favorable final judgment" if there
is "a causal connection between the plaintiffs' lawsuit and the relief obtained." (Maria P.
v. Riles (1987) 43 Cal.3d 1281, 1290-1291.) The catalyst theory looks to the "impact of
the action, not the manner of its resolution." (Folsom v. Butte County Assn. of
Governments (1982) 32 Cal.3d 668, 685.) "Under the catalyst theory, attorney fees may
be awarded even when litigation does not result in a judicial resolution if the defendant
8
changes its behavior substantially because of, and in the manner sought by, the
litigation." (Graham, at p. 560.) Furthermore, "to be eligible for attorney fees under
section 1021.5, a plaintiff must not only be a catalyst to defendant's changed behavior,
but the lawsuit must have some merit . . . and the plaintiff must have engaged in a
reasonable attempt to settle its dispute with the defendant prior to litigation." (Id. at
pp. 560-561, italics added.)
Graham's requirement that a plaintiff make a reasonable attempt to settle the
dispute "is fully consistent with the basic objectives behind section 1021.5," including its
express requirement that the private enforcement be necessary. (Graham, supra, 34
Cal.4th at p. 577.) Graham stated:
"Awarding attorney fees for litigation when those rights could have been vindicated by reasonable efforts short of litigation does not advance that objective and encourages lawsuits that are more opportunistic than authentically for the public good. Lengthy prelitigation negotiations are not required, nor is it necessary that the settlement demand be made by counsel, but a plaintiff must at least notify the defendant of its grievances and proposed remedies and give the defendant the opportunity to meet its demands within a reasonable time. [Citations.] What constitutes a 'reasonable' time will depend on the context." (Graham, supra, 34 Cal.4th at p. 577.)
"[S]ettlement efforts (or their absence) are relevant in every case to show that 'the
necessity and financial burden of private enforcement . . . are such as to make the award
appropriate . . . . ' [Citation.] In assessing such information in a particular case to
determine whether private enforcement was sufficiently necessary to justify an award of
fees, the trial court exercises its equitable discretion in light of all the relevant
circumstances." (Vasquez v. State of California (2008) 45 Cal.4th 243, 258-259, fn.
9
omitted, italics added by Vasquez.) However, if the trial court finds that attempts to settle
the dispute by the plaintiff would have been futile, the plaintiff may not be barred from
recovering section 1021.5 attorney fees because of the lack of a settlement attempt.
(Cates v. Chiang (2013) 213 Cal.App.4th 791, 816-817.)
On appeal, we apply the abuse of discretion standard in reviewing a trial court's
decision whether to award attorney fees under section 1021.5. (Graham, supra, 34
Cal.4th at p. 578.) In Wal-Mart Real Estate Business Trust v. City Council of San
Marcos (2005) 132 Cal.App.4th 614, 620, we stated:
"Whether the applicant for attorney fees has proved section 1021.5's elements is a matter primarily vested in the trial court. [Citation.] 'We review the entire record, attentive to the trial court's stated reasons in denying the fees and to whether it applied the proper standards of law in reaching its decision. [Citation.] We will reverse the trial court's decision only if there has been a prejudicial abuse of discretion, i.e., when there has been a manifest miscarriage of justice or " 'where no reasonable basis for the action is shown.' " ' "
A trial court abuses its discretion when it exceeds the bounds of reason given all of the
circumstances in the case. (Wal-Mart, at p. 625; Denham v. Superior Court (1970) 2
Cal.3d 557, 566.) Furthermore, in applying the abuse of discretion standard of review,
we give considerable deference to the trial court, including deference to the trial court's
reasonable inferences when two or more inferences can reasonably be drawn from the
record. (In re Woodham (2001) 95 Cal.App.4th 438, 443.)
10
II
Carian's Attempt to Settle the Dispute
Carian contends the trial court erred in denying his motion for attorney fees
because he gave the Department notice of the dispute before filing his action, any attempt
to settle the dispute would have been futile, and he satisfied all of the other requirements
for an award of attorney fees under section 1021.5.
A
At the outset, Carian asserts we should apply the de novo, or independent,
standard of review rather than the abuse of discretion standard of review because the facts
are undisputed. We disagree. As discussed above, it is well established that the abuse of
discretion standard applies in reviewing a trial court's decision whether to award a
plaintiff section 1021.5 attorney fees. (Graham, supra, 34 Cal.4th at p. 578; Wal-Mart
Real Estate Business Trust v. City Council of San Marcos, supra, 132 Cal.App.4th at
p. 620.) Even assuming the underlying facts are undisputed, it remains the trial court's
duty to consider those facts and the circumstances of the case and exercise its discretion
in determining whether the requirements were satisfied for an award of attorney fees
under section 1021.5, and we can reverse the court's determination only if there is no
reasonable basis for it. (Wal-Mart, at p. 620.) Furthermore, in reviewing the trial court's
decision, we defer to its reasonable inferences when two or more inferences can
reasonably be drawn from the undisputed facts. (In re Woodham, supra, 95 Cal.App.4th
at p. 443.)
11
B
Carian asserts the trial court erred by denying his motion for section 1021.5
attorney fees based on its finding he did not make a reasonable attempt to settle the
dispute before filing his action against Defendants.4 He argues his pre-lawsuit notice to
Defendants met Graham's requirements for making a reasonable attempt to settle the
dispute as a matter of law. Based on our reading of Graham, we conclude Carian
misinterprets and/or misapplies its standard for reasonable attempts to settle under section
1021.5. In describing that requirement, Graham stated in part: "[A] plaintiff must at least
notify the defendant of its grievances and proposed remedies and give the defendant the
opportunity to meet its demands within a reasonable time." (Graham, supra, 34 Cal.4th
at p. 577, italics added.) However, we, like the trial court, conclude the qualifying
language "at least" does not equate with "at most," as Carian apparently suggests.
Alternatively stated, we disagree with Carian's apparent assertion that a plaintiff
necessarily makes a reasonable attempt to settle when he or she simply notifies the
defendant of the grievance and proposed remedies, and that nothing more is required to
be done by the plaintiff. On the contrary, we believe the trial court correctly viewed
Graham's statement as a "starting point" in its determination of whether Carian made a
reasonable attempt to settle the dispute in the circumstances of this case. In Vasquez, the
4 By arguing he satisfied the requirements for section 1021.5 attorney fees under the catalyst theory, Carian apparently concedes, as he must, that he was not the prevailing party in his action against Defendants. As noted above, the trial court sustained Defendants' demurrer to Carian's complaint without leave to amend.
12
court expressly stated that in determining whether private enforcement was sufficiently
necessary to justify an award of section 1021.5 attorney fees, "the trial court exercises its
equitable discretion in light of all of the relevant circumstances." (Vasquez v. State of
California, supra, 45 Cal.4th at pp. 258-259, fn. omitted.) In exercising its discretion
whether to award a plaintiff section 1021.5 attorney fees, a trial court must consider not
simply whether the plaintiff notified the defendant of the dispute before filing the lawsuit,
but also must consider all of the relevant circumstances in the case in determining
whether the plaintiff made a reasonable attempt to settle the dispute before filing the
lawsuit. (Id. at pp. 258-259; Graham, at pp. 560-561, 577.) Therefore, contrary to
Carian's assertion, we conclude the trial court applied the correct legal standard in
determining whether he made a reasonable attempt to settle the dispute before filing his
lawsuit against Defendants.
We also reject Carian's assertion the trial court erred by finding he did not make a
reasonable attempt to settle the dispute in the circumstances of this case. As discussed
above, the record shows Carian met with Nicol in October 2011 regarding reopening the
Trail; his counsel met in February 2012 with a deputy attorney general who rejected
Carian's request to reopen the Trail and was then informed Carian would deal with it in a
lawsuit separate from his pending public records lawsuit. For purposes of this opinion,
we assume arguendo that Defendants had, at least, some notice of Carian's dispute
regarding reopening the Trail before he filed the instant action. Contrary to Carian's
assertion, his notice to Defendants did not also constitute notice to the Commission
and/or the State for purposes of section 1021.5 attorney fees. As Defendants assert,
13
California's state agencies are distinct and separate governmental entities and therefore
notice to one does not constitute notice to all. (See, e.g., Marine Forests Society v.
California Coastal Com. (2005) 36 Cal.4th 1, 48-49; People ex rel. Lockyer v. Superior
Court (2004) 122 Cal.App.4th 1060, 1076-1080; People v. Superior Court (Barrett)
(2000) 80 Cal.App.4th 1305, 1317.)
However, as stated above, mere notice to a potential defendant is not necessarily
sufficient to meet Graham's requirement for a reasonable attempt to settle a dispute
before filing a lawsuit. In deciding that issue, the trial court properly considered all of the
circumstances in this case, including whether Carian's lawsuit was necessary to obtain the
changes or relief he sought (i.e., reopening of the Trail). One of the circumstances the
trial court considered was whether the Department was the only party Carian should have
contacted and made his request for reopening the Trail. The court concluded Carian
should also have contacted the Commission, which has the ultimate authority under
applicable statutes to allow or disallow access to the Trail, and not just the Department,
which merely enforces the regulations the Commission adopts. (Fish & Game Code,
§§ 1580, 1583.) Under that statutory scheme, the Commission adopted a regulation that
designated the Reserve (which includes the Trail) as an ecological reserve. (Cal. Code
Regs., tit. 14, § 630(b)(76).) That regulation states in part: "Visitor uses are dependent
upon the provisions of applicable laws and upon a determination by the [C]ommission
that opening an area to such visitor use is compatible with the purposes of the property.
Visitor use is subject to the regulations below, in sections 550 and 550.5 of these
14
regulations, as well as any other [C]ommission regulations that may apply." (Cal. Code
Regs., tit. 14, § 630(a), italics added.)
Based on the statutory and regulatory scheme for California's ecological reserves,
including the Reserve and the Trail, we conclude the trial court properly determined
Carian should have contacted the Commission and requested that it adopt regulations
allowing access to the Trail before he filed the instant action against the Department and
Nicol. The trial court could have reasonably concluded that had Carian contacted the
Commission before filing his action, then private enforcement (i.e., his action against
Defendants) may not have been necessary to obtain the changes he sought (i.e., reopening
of the Trail), and therefore Carian did not meet the requirements for an award of section
1021.5 attorney fees. (§ 1021.5; Graham, supra, 34 Cal.4th at p. 577; Vasquez v. State of
California, supra, 45 Cal.4th at pp. 258-259.) Contrary to Carian's assertion, the trial
court reasonably cited as support for its conclusion the legislative analysis of Assembly
Bill No. 880 that indicated the legislation might not have been necessary had someone
(e.g., Carian) contacted the Commission about the issue.
We reject Carian's argument that he did not have to contact the Commission
regarding the dispute because Nicol (or other persons with or on behalf of the
Department) purportedly asserted the Department had the authority to reopen the Trail.
The trial court could have concluded that a reasonable plaintiff's attorney would have
researched the statutory and regulatory scheme for ecological reserves before filing a
lawsuit to reopen the Trail and, in so doing, presumably would have learned the
Commission, and not the Department, has the authority to adopt regulations to allow or
15
disallow access to the Trail. Therefore, the court could have concluded Carian
unreasonably relied on the purported representations regarding the Department's
authority. Furthermore, even assuming the Department possesses certain discretion to
allow access to the Trail, that authority would not necessarily preclude other government
agencies or entities (e.g., the Commission) from having concurrent authority, and even
greater authority, to allow access to the Trail. Therefore, the trial court properly
concluded Carian did not make a reasonable attempt to settle the dispute because he did
not contact the Commission and request specific changes be made regarding access to the
Trail before filing the instant action. None of the cases cited by Carian (e.g., Connerly v.
State Personnel Bd. (2006) 37 Cal.4th 1169; Friends of the Trails v. Blasius (2000) 78
Cal.App.4th 810) are apposite to this case or otherwise persuade us to reach a contrary
conclusion.
C
Finally, Carian asserts the trial court erred by finding, in effect, he waived any
argument that it was futile for him to attempt to settle the dispute by contacting the
Commission because the Commission's response would have been the same as the
Department's response (i.e., rejection of his request). In denying Carian's section 1021.5
attorney fee motion, the trial court found in part: "[Carian] offers no evidence that it
would have been futile to have made further settlement efforts, in particular, to have gone
to the Fish and Game Commission for assistance." (Italics added.) As Defendants assert,
Carian waived any futility argument by not raising it below. (Resolution Trust Corp. v.
Winslow (1992) 9 Cal.App.4th 1799, 1810.) In any event, even had he raised that issue
16
below, he did not, as the trial court found, submit any evidence below showing that any
notice or other contact to the Commission would have been futile. Carian's arguments on
appeal that any notice or contact to the Commission would have been futile are
speculative and not supported by any evidence in the record. We conclude the trial court
properly found Carian, in effect, waived any futility argument and/or did not carry his
burden to prove any attempt to settle the dispute by contacting the Commission would
have been futile. Cates v. Chiang, supra, 213 Cal.App.4th 791, cited by Carian, is
factually inapposite to this case and does not persuade us to reach a contrary conclusion.
D
Because we conclude the trial court properly found Carian did not make a
reasonable attempt to settle the dispute before filing his action against Defendants and
therefore did not meet that requirement for an award of section 1021.5 attorney fees, we
need not, and do not, address his argument that he satisfied all of the other requirements
for an award of attorney fees under section 1021.5.
DISPOSITION
The order is affirmed.
McDONALD, J. WE CONCUR:
NARES, Acting P. J.
HALLER, J.
17
Filed 4/2/15 COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
BLAINE CARIAN, D066683
Plaintiff and Appellant,
v. (Super. Ct. No. INC1203600)
CALIFORNIA DEPARTMENT OF FISH ORDER CERTIFYING OPINION AND WILDLIFE et al., FOR PUBLICATION
Defendants and Respondents.
THE COURT:
The opinion filed March 9, 2015, is ordered certified for publication.
NARES, Acting P. J.
Copies to: All parties
AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court did not abuse its discretion in denying attorney fees under Code of Civil Procedure section 1021.5 because the plaintiff failed to make a reasonable pre-litigation attempt to settle the dispute by failing to contact the Fish and Game Commission, which held the authority to resolve the issue.
Issues
Whether the trial court abused its discretion in finding the plaintiff failed to make a reasonable pre-litigation settlement attempt under the catalyst theory.
Whether a plaintiff must contact all relevant government agencies to satisfy the reasonable settlement attempt requirement under section 1021.5.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“a plaintiff must at least notify the defendant of its grievances and proposed remedies and give the defendant the opportunity to meet its demands within a reasonable time.”
“Awarding attorney fees for litigation when the rights could have been vindicated by reasonable efforts short of litigation does not advance that objective and encourages lawsuits that are more opportunistic than authentically for the public good.”
“the trial court exercises its equitable discretion in light of all of the relevant circumstances.”