In Make UC a Good Neighbor v. Regents of University of California, published December 19, 2025, the 1st District Court of Appeal, Division 5 affirmed a trial court order denying the plaintiffs’ attorney fee motion under Code of Civil Procedure section 1102.5. The plaintiffs petitioned for a writ challenging the defendant’s Environmental Impact Report under CEQA. The trial court rejected the writ. The appellate court reversed the trial court’s decision on two issues, and affirmed on others. Both parties petitioned the California Supreme Court for review. The Supreme Court denied the plaintiffs’ petition and granted the defendant’s petition on the two issues on which the plaintiffs prevailed in the appellate court. While the petition was pending, the Legislature amended CEQA to legislatively overrule the ruling in the appellate court as to the two issues on which the plaintiffs prevailed, albeit limiting the legislation to residential and mixed-use projects. The Supreme Court concluded that the new legislation required reversal of the appellate court’s decision as to the two issues on which the plaintiffs had prevailed. The Supreme Court directed the lower appellate court to remand the case to the trial court to enter a judgment on the merits in favor of the defendant. On remand, the plaintiffs moved for an award of attorney fees of over $1 million under sction 1102.5. They argued that they were a successful party because the lower appellate court’s rulings in their favor remained good law as to nonresidential projects. The trial court denied the motion, ruling that the the plaintiffs were not successful on any aspect of their claims.
The appellate court agreed. Section 1102.5, which codifies the “private attorney general” doctrine, awards fees to successful parties whose actions result in the enforcement of important rights benefiting the public interest, conferring a significant benefit on the general public or a large class, where the necessity and financial burden of private enforcement make an award appropriate. Here the trial court correctly ruled that the plaintiffs were not successful. Although the appellate court’s ruling remained published after the Supreme Court granted review, under the California Rules of Court it only had binding or precedential effect to the extent it was not inconsistent with the Supreme Court’s decision or is disapproved by that court. The Supreme Court reversed on both issues on which the plaintiffs won in the lower court. That is unambiguous disapproval. That the Supreme Court’s decision was limited to residential projects was irrelevant. Abrogated by statute and reversed by the Supreme Court, the lower court’s analyses of the two issues “are smoldering ruins, not citeable precedent.” The trial court therefore did not abuse its discretion in denying the fee motion.
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