Unlike fees awarded under 42 USC §1988 for civil rights claims, the private attorney general attorney fees provision in California (Code of Civil Procedure §1021.5) permits an award of fees if the subject litigation was the “catalyst” for the government’s change of position even where the litigation did not result in a successful judgment or court order. In order to win fees under the catalyst theory, however, the California Supreme Court has said that you must attempt to settle the dispute before filing the law suit. (Graham v. DaimlerChrysler Corp., 34 Cal. 4th 533, 560 (2004)).
The question addressed by the Court of Appeal in Hogar v. Community Development Commission is whether you are entitled to fees for those pre-litigation activities. The court ruled that fees for pre-complaint activities were not precluded under section 1021.5, but that a litigant seeking such fees will “bear a heavier burden of demonstrating how that activity contributed to the success of the litigation.”
The lesson for counsel involved in these actions is to keep accurate records of their time from the first contact with the government agency — even if you are unsure at that point that your client will pursue litigation if those initial contacts are unsuccessful.