Carian v. Dept. Fish & Wildlife
Annotate this CaseBlaine Carian appeals a postjudgment order denying his motion for attorney fees pursuant to Code of Civil Procedure section 1021.5. In or about 1975, the Fish and Game Commission adopted a regulation that designated Magnesia Spring Ecological Reserve (Reserve) in Riverside County as an ecological reserve. In or about 1976, the Department apparently adopted a wildlife management plan for the Reserve, which provided that "[e]nforcement of laws pertaining to [the Reserve] should be the responsibility of the Department." In or about 2007, the Department apparently adopted a multi-species habitat conservation plan, which stated that "[u]se of trails on [the Department's] land is subject to [California Code of Regulations] Title 14." It also contemplated that the "Bump and Grind" portion (Trail) of the Mirage Trail would be decommissioned and removed by the Department in the future. In January 2012, Assembly Bill No. 284 was introduced to enact a statute allowing access to the Trail. That bill apparently expired, or "died," pursuant to the California Constitution for lack of timely passage. In March 2012, a new bill, Assembly Bill No. 880, was introduced that contained the same language as the prior bill to enact a statute allowing access to the Trail. Carian filed the underlying lawsuit against defendants the California Department of Fish and Wildlife and Kimberly Nichol (a department manager), alleging causes of action for a writ of mandate directing the Department to reopen the Trail, taxpayer relief, quiet title to public easement, and declaratory relief. Assembly Bill No. 880 was ultimately passed, enacting former Fish and Game Code section 1587, effective as of January 2013, and the Governor signed the Bill. At the October 15 hearing on Defendants' demurrer, Carian conceded the new statute made his lawsuit moot. The court sustained Defendants' demurrer without leave to amend. In January 2013, Carian filed a motion for attorney fees under section 1021.5. In seeking an award of $100,000 in attorney fees against Defendants, Carian argued that his lawsuit was necessary to enforce an important right affecting the public interest and conferred a significant benefit on the general public by causing the State to open the Trail. The trial court found Carian did not, as required by 1021.5, make a reasonable attempt to settle his dispute before filing suit against defendants. On appeal, Carian argued the trial court erred in denying his motion for attorney fees because he gave the Department notice before filing his action, any attempt to settle the dispute would have been futile, and he satisfied all of the other requirements for an award of attorney fees under section 1021.5. The Court of Appeal confirmed the trial court's finding that Carian did not make a reasonable attempt to settle the dispute prior to filing his action against defendants. Therefore, Carian did not meet the requirement for an award of section 1021.5 attorney fees.
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