Two new decisions on private attorney general doctrine attorneys' fees: Adoption of Joshua S. and Roybal v. Governing Board

Two new decisions construing the private attorney general doctrine of Code of Civil Procedure section 1021.5 have recently been handed down.

In Adoption of Joshua S., ___ Cal.4th ___ (Jan. 24, 2008), the Supreme Court held that "section 1021.5 does not authorize an award of attorney fees against an individual who has done nothing to adversely affect the rights of the public or a substantial class of people other than raise an issue in the course of private litigation that could establish legal precedent adverse to a portion of the public ...." Slip op. at 2. The Court agreed with the argument that "section 1021.5 attorney fees should not be imposed on parties ... who ha[ve] only engaged in litigation to adjudicate private rights from which important appellate precedent happens to emerge, but has otherwise done nothing to compromise the rights of the public or a significant class of people." Id. at 8.

And in Roybal v. Governing Board, ___ Cal.App.4th ___ (Jan. 11, 2008; pub. ord. Feb. 6, 2008), the Court of Appeal (Sixth Appellate District) reversed a fees award under section 1021.5, holding that the action had not "resulted in the enforcement of an important right affecting the public interest." Slip op. at 5-9, passim.