Under the American Rule of attorney fees in civil litigation, every party—even the party prevailing—must pay its own attorney’s fees. Unless specific authority granted by statute or contract allows the awarding of accrued attorney fees against the other party, each party in a lawsuit is responsible for paying its own attorney.

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Attorney Fee Shifting


This American Rule applies in all forms of civil litigation, including in petitions for writs of mandate. However, there is two particular statutory exceptions to this rule (and a couple non-statutory exceptions) that commonly come up when prosecuting a petition for writ of mandate.

Arbitrary and Capricious

Government Code, section 800, authorizes the award of “reasonable” attorney fees in civil actions brought “to appeal or review the award, finding, or other determination of any administrative proceeding.” The standard to prevail on this claim is by establishing that the award, finding, or other determination was made as a result of “arbitrary or capricious conduct.”

The statute states three conditions for eligibility for a fee award:

  • The petitioner must prevail against a public entity or official in an action to appeal or review an “administrative proceeding” under state law.
  • The administrative award, finding, or determination must have been the result of arbitrary or capricious action or conduct.
  • The petitioner must be “personally obligated” to pay the attorney fees.

The court is split on what meets “administrative proceeding” for purposes of meeting the award condition. Several courts have rejected applications for fees that did not involve petitions from rulings of administrative law judges after hearing under Code of Civil Procedure, section 1094.5. (Kistler v. Redwoods Community College Dist. (1993) 15 Cal.App.4th 1326, 1336.) Others denied fees because the petition was for a writ of mandate under Code Civil Procedure, section 1085. (Sullivan v. Calistoga Joint Unified Sch. Dist. (1991 ) 228 Cal.App.3d 1313.)
Whether the standard has been met is determined as part of the decision on the merits of the underlying petition. Therefore, the petitioner will be obligated to demonstrate the facts and evidence to support that the responding-public entity or responding-public official was arbitrary or capricious. The trial court has discretion to determine whether the nature of the conduct met the “arbitrary or capricious standard,” and the case precedent is not entirely clear on what that means. (See, e.g., Halaco Eng’g Co. v. South Cent. Reg’l Comm’n (1986) 42 Cal.3d 52, 78 [requires trial court to find the agency’s actions wholly arbitrary and capricious]; cf. Abshear v. Teachers’ Retirement Bd. (1991) 231 Cal.App. 1629 [fee award affirmed as defendant’s conduct was not supported by “a fair and substantial reason”].)
Finally, only the petitioner can be the “prevailing complainant” under Government Code, section 800. (Stirling v. ALRB (1987) 189 Cal.App.3d 1305.)
Please note that attorney fees under the “arbitrary and capricious” banner are limited. The maximum amount that could be awarded is $7,500.00. And that amount is reached by computing time spent on the matter at a rate no more than $100.00 per hour. (See Reeves v. City of Burbank (1979) 94 Cal.App.3d 770.) Seeing as most attorneys charge an hourly rate much higher than that and that most petitions for writs of administrative mandate take approximately 50-80 hours to prosecute,  it is unlikely that an award under this statute will make the petitioner whole.

Effectuation of Fundamental Public Policies

Upon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest. (Code Civ. Proc., § 1021.5.) This is the codification of the private attorney general doctrine and complements the equitable doctrine under California law that had been developed prior to the adoption of the statute.
The courts have taken a broad view of who is the “successful party” in such a case, limited only by the expressed statutory limitation that public entities are not eligible for the award—unless they successfully prevailed over another public entity. Generally, a party is successful if if achieves some relief from the conditions challenged in the petition or litigation. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1292.) Similarly, the courts have taken a broad view over what “any action” means. (In re Head (1986) 42 Cal.3d 223, 233.)
To achieve the award, a party seeking fees as having effectuated a fundamental public policy must satisfy the following criteria:

  1. That the action resulted in the enforcement of an important right affecting the public interest;
  2. That the action conferred a significant benefit on the general public or a large class of persons;
  3. That the necessity and financial burden of private enforcement were such as to make a fee award “appropriate”; and
  4. That, in the interests of justice, the fee should not be paid out of the recovery.

In considering these criteria, courts must “assess the litigation realistically and determine from a practical perspective whether [the statutory] criteria have been met.” (Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173, 177.) There is no concrete standard or test against which a court may decide whether the right vindicated in a particular case is sufficiently “important” to justify a fee award. Rather, the courts are given the discretion to realistically assess the “strength” or “societal importance” of that right by its relationship to the achievement of fundamental legislative goals. (Woodland Hills Residents Ass’n v. City Council (a/k/a Woodland Hills II) (1979) 23 Cal.3d 917, 935.) Rights to be considered include those of constitutional, statutory (federal and state), and even the common law.
Similarly, the “significant benefit” and the “size of the class of persons” are determined by the trial court using its traditional equitable discretion, “from a realistic assessment, in light of all the pertinent circumstances, of the gains which have resulted in a particular case.” (Id. at 939.) An action need not create new law to satisfy the substantial benefit requirement.
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Determining whether the necessity and burden of private enforcement make a fee award “appropriate,” involves an examination of four general issues:

  1. Whether private, as opposed to public, enforcement was necessary;
  2. Whether the lawsuit was necessary in light of an action or lawsuit brought by another party;
  3. Whether a lawsuit was necessary at all; and
  4. Whether the financial burden of private enforcement warrants a fee award.

And the final requirement is only relevant when there actually has been a financial recovery.
When all of these criterion are met, the shifting of fees may be denied only if the respondent/defendant/opponent can show that special circumstances would render an award unjust. The defendant’s good faith, lack of bad faith, lack of inappropriate conduct, and even the doctrine of unclean hands (i.e. bad conduct of petitioner/plaintiff) are all not valid defenses to a fee-shift award under this statute.

Non-Statutory Fee-Shifting Authority

In addition to the two referenced statutory exceptions, three additional, non-statutory exceptions that result in fee-shifting that could come up in prosecuting writs of mandate:

  1. Private Attorney General Equitable Exception – mentioned above; the California courts can exercise their inherent equitable authority to award fees to petitioners who successfully pursue public interest litigation that vindicates important constitutional rights. (Serrano v. Priest (a/k/a Serrano III) (1977) 20 Cal.3d 25, 43.) The purpose is to encourage suits that enforce a strong public policy and benefit a broad class of people. It still exists (despite its apparent codification in Code Civ. Proc., § 1021.5) because it may be invoked when fees are not available under the statute. (see, e.g. Best v. California Apprenticeship Council (1987) 193 Cal.App.3d 1448, 1462 n.12 [fees may not be awarded under § 1021.5 for administrative proceedings that do not result in court “actions”, but they may be awarded under the equitable private attorney general doctrine].)
  2. Common Fund Doctrine – based on unjust enrichment, the doctrine provides that when a petitioner’s effort creates or preserves a fund from which others derive benefits, the petitioner may require the passive beneficiaries to bear a fair share of the costs. (Sprague v. Ticonic Nat’l Bank (1939) 307 U.S. 161; Quinn v. State (1975) 15 Cal.3d 162, 167.) Requirements are an identifiable fund, created or preserved by way of the petition or litigation, and that all beneficiaries of the fund must share in the costs/fees. There is a split of authority over whether the Common Fund doctrine takes priority over the Code of Civil Procedure, section 1021.5 or the private attorney general doctrine.
  3. Substantial Benefit Doctrine – extension of the common fund doctrine; when a petitioner’s effort resulted in a substantial benefit to an identifiable class of persons with whom the court has jurisdiction over, the court can spread the costs and fees over the entire class. (El Toro Ass’n v. Days (1979) 98 Cal.App.3d 544, 548.)

As you can see, these non-statutory fee-shifting doctrines and exceptions are even more hyper-specific than the statutory exceptions. And thus, they are limited to special circumstances that—while feasible—are not very common in petitioning for a writ of mandate.