Court Bars AG From Winning ‘Private Attorney General' Fees

The state attorney general cannot recover fees under the Code of Civil Procedure's "private attorney general" provision, the Third District Court of Appeal has ruled in a Tehama County case involving the Subdivision Map Act and the Williamson Act.

The attorney general's office sued the county over a lot-line adjustment that the state argued should have been subject to map act restrictions and Williamson Act findings. The attorney general (AG) won the case and a trial court awarded the AG $173,000 in fees.

However, the Third District, citing California Licensed Foresters Assn. v. State Bd. of Forestry, (1994) 30 Cal.App.4th 562, 570, ruled, "[A]n award of attorney fees under Code of Civil Procedure § 1021.5 has always served ‘as a "bounty" for pursuing public interest litigation, not a reward for litigants motivated by their own interests who coincidentally serve the public.'"

"The attorney general," Justice Ronald Robie wrote for the court, "needs no encouragement to pursue litigation that is in the general interest of the state's population because, put simply, that is his or her job."

The case involved Tehama County Planning Director George Robson's approval in 1999 of a lot line adjustment for the 3,300-acre Burr Valley Estates west of Red Bluff. The property owned by KAKE, LLP, is under a Williamson Act contract, which provides property owners a tax break for not developing their land. Robson approved KAKE's lot line application after determining it would not create more parcels than already existed.

In recent years, the state Department of Conservation has expressed concern over Tehama County practices regarding the division of land covered by the Williamson Act. Generally, the Williamson Act bars land divisions unless the resulting parcels would still be of sufficient size to sustain agricultural uses. Tehama County has approved such divisions as long as resulting parcels are at least 40 acres in size.

In May 2001, the AG, the Resources Agency and the Department of Conservation sued over the KAKE project, arguing that the lot-line adjustment violated the Subdivision Map Act and the Williamson Act. Retired Lassen County Superior Court Judge Joseph Harvey ruled for the state and eventually awarded the AG attorney fees. The county and KAKE appealed both the ruling and award of fees.

In a lengthy, unpublished portion of the decision, the Third District ruled that the county had in fact violated the Subdivision Map Act because the lot line adjustment resulted in 29 parcels, which was at least two more than existed prior to the lot line adjustment. Lot line adjustments may not increase the number of parcels. The court reached its conclusion after a detailed examination of early 20th Century land transactions. KAKE had argued there were 37 or 40 pre-existing parcels, while the state argued there were 21 or 24. KAKE argued that the state's figure was based on the forced merger of lots, which Code of Civil Procedure § 1093 prohibits. But the court concluded KAKE read the law too broadly.

After concluding the state was correct and the lot-line adjustment was subject the Subdivision Map Act, the court turned to the issue of attorney fees. The discussion of attorney fees was the only portion of the decision the Third District published, meaning it is the only part of the case that may be cited as precedent.

Judge Harvey had awarded the $173,000 based on the "obdurate behavior" of a previous county attorney. The state conceded this was not a proper basis for the fee award and instead argued that the case was an extreme situation and that the AG's costs of conducting the litigation were out of proportion to the any pecuniary interest of the state.

But the Third District ruled that under the financial burden criterion of § 1021.5, the attorney general does not qualify for fees. "[T]he pertinent question is whether the public entity deserves a reward for pursuing litigation that was in the interest of a greater spectrum of the public than its own constituents," Robie wrote, citing cases involving lawsuits filed by one local government against another.

"[A]pplying the traditional financial burden criterion to public entity litigants will not always preclude a fee award under Code of Civil Procedure § 1021.5, except then the public entity litigant is the state itself, acting through the attorney general. Such a case will always be self-serving, in that the People will always be pursuing their own interests through their chief attorney, whose very raison d' etre is to enforce the laws of the state and serve the public interests of the state's population as a whole," Robie wrote.

"To reward the attorney general with attorney fees for pursuing litigation it is his or her duty to pursue would stand the private attorney general doctrine on its head," the court concluded.

The decision pleased not only Tehama County but city and county organizations that were concerned about costs and the possibility that the AG's office might make decisions based on the likelihood of winning fees.

The Case:
People ex rel. Brown v. Tehama County Board of Supervisors, No. C049048, 07 C.D.O.S. 2872, 2007 DJDAR 3650. Filed March 16, 2007. Modified April 11, 2007 at 2007 DJDAR 4803.
The Lawyers:
For People: Richard Thalhammer, attorney general's office, (916) 445-9555.
For the county: Arthur Wylene, county counsel's office, (530) 527-9252.
For KAKE, LLP: James Wagstaffe, Kerr & Wagstaffe, (415) 371-8500.


Corrections. A case involving enforcement of the Williamson Act in Tehama County and the payment of attorney fees to the state has in fact been published in full. A story in the June edition erroneously reported that only a portion of the case was certified for publication. The case is People ex rel. Brown v. Tehama County Board of Supervisors.