Filed 12/5/13 Soules v. Hoofprints of the Heart Adaptive Riding Center CA1/5


             NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE



BARBARA SOULES,
         Plaintiff and Appellant,                                        A138340
                   v.
HOOFPRINTS ON THE HEART                                                  (Alameda County
ADAPTIVE RIDING CENTER,                                                  Super. Ct. No. HG-11-601258)
         Defendant and Respondent.


         Barbara Soules appeals from the trial court’s order denying her motion for
attorney fees pursuant to Code of Civil Procedure section 1021.5.1 We affirm.
                                                 BACKGROUND2
         On April 26, 2011, Soules was one of five members of the board of directors
(board) of respondent Hoofprints on the Heart Adaptive Riding Center, a California
nonprofit public benefit corporation offering programs with horses for students with
disabilities. The other four members of the board held a meeting, excluded Soules from
that meeting, and voted to remove her from the board.

1   All undesignated section references are to the Code of Civil Procedure.
2  As the trial court’s findings on the merits of the petition are not challenged on appeal,
we accept the facts set forth in its statement of decision granting Soules’s petition. (See
City of Merced v. American Motorists Ins. Co. (2005) 126 Cal.App.4th 1316, 1322-
1323.)
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       Soules filed a petition for writ of mandate challenging this action. The trial court
ruled in Soules’s favor, finding neither respondent’s bylaws nor the Corporations Code
permitted the exclusion of a board member from a meeting of the board, and therefore
Soules’s removal at such a meeting was improper. The trial court directed respondent to
reinstate Soules as a member of the board.
       Soules subsequently sought attorney fees pursuant to section 1021.5. The trial
court declined to award fees, finding “[t]he action did not result in the enforcement of an
important right affecting the public interest” and “conferred no significant nonpecuniary
benefit on the general public or a large class of persons.” This appeal followed.
                                       DISCUSSION
       Section 1021.5 is designed “ ‘ “. . . to encourage suits enforcing important public
policies by providing substantial attorney fees to successful litigants in such cases.” ’
[Citations.] [¶] A court may award attorney fees under section 1021.5 only if the
statute’s requirements are satisfied. Thus, a court may award fees only to ‘a successful
party’ and only if the action has ‘resulted in the enforcement of an important right
affecting the public interest . . . .’ [Citation.] Three additional conditions must also exist:
‘(a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the
general public or a large class of persons, (b) the necessity and financial burden of private
enforcement, or of enforcement by one public entity against another public entity, are
such as to make the award appropriate, and (c) such fees should not in the interest of
justice be paid out of the recovery, if any.’ ” . . . In deciding whether to award fees, the
court ‘must realistically assess the litigation and determine, from a practical perspective,
whether or not the action served to vindicate an important right so as to justify an
attorney fee award under a private attorney general theory.’ [Citation.]” (Vasquez v.
State of California (2008) 45 Cal.4th 243, 250-251 (Vasquez).) We review the trial
court’s denial of attorney fees under section 1021.5 for abuse of discretion. (Id. at
p. 251.)
       The trial court’s determination that Soules’s petition did not result in the
enforcement of an important public right or confer a significant benefit on the general

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public was not an abuse of discretion. While Soules broadly claims her petition impacted
respondent’s “governance issues,” she does not discuss at all the public interest in or
benefit from the only specific issue addressed in her case — the exclusion of a board
member from a board of directors meeting. As to that issue, the fact that her petition may
cause respondent to conduct its board meetings differently in the future does not satisfy
the public interest or significant benefit requirements of section 1021.5. (See LaGrone v.
City of Oakland (2011) 202 Cal.App.4th 932, 946 [“The possibility that [the employee’s]
lawsuit [challenging his layoff] may have conveyed a cautionary message to the City and
Port about their conduct, or that it might cause them to change their practices in the
future, is insufficient to satisfy the significant public benefit requirement.”].)
       The fact that Soules had no pecuniary interest in her position as a board member
does not alter this conclusion. Even if she intended her petition to be for the public
interest, such an intent does not entitle her to attorney fees under section 1021.5.
       Soules argues there has been some discussion of respondent in public meetings
and letters to local newspapers. But there is no indication this discussion was prompted
by Soules’s petition, nor does the discussion appear to involve respondent’s exclusion of
a board member from a board meeting. Even if the public discussion did involve
Soules’s petition, that fact alone does not mean her petition served an important public
interest or conferred a substantial benefit.
       Finally, contrary to Soules’s suggestion, the “catalyst theory” is not an alternative
to the substantial benefit requirement. Instead, it determines when a plaintiff is a
“successful party” in a case resolved by means other than a judicial determination of the
merits. (Vasquez, supra, 45 Cal.4th at p. 247 [“ ‘catalyst theory’ permits a court to award
attorney fees under section 1021.5 ‘even when litigation does not result in a judicial
resolution if the defendant changes its behavior substantially because of, and in the
manner sought by, the litigation’ ”].) There is no dispute Soules was the successful party;
the denial of attorney fees was based on other grounds, discussed above.




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                                   DISPOSITION
      The order denying Soules’s motion for attorney fees is affirmed. Respondent is
awarded its costs on appeal.




                                              SIMONS, J.



We concur.




JONES, P.J.




BRUINIERS, J.




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