Filed 3/9/15 Carian v. Cal. Dept. of Fish and Wildlife CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



BLAINE CARIAN,                                                      D066683

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. INC1203600)

CALIFORNIA DEPARTMENT OF FISH
AND WILDLIFE et al.,

         Defendants and Respondents.


         APPEAL from an order of the Superior Court of Riverside County, Harold W.

Hopp, Judge. Affirmed.

         Redwine and Sherrill, and M. Eli Underwood for Plaintiff and Appellant.

         Kamala D. Harris, Attorney General, Robert W. Byrne, Assistant Attorney

General, Eric M. Katz, Ross H. Hirsch and Diana Vernazza, Deputy Attorneys General,

for Defendants and Respondents.
       Blaine Carian appeals a postjudgment order denying his motion for attorney fees

pursuant to Code of Civil Procedure1 section 1021.5. The trial court found he did not

make a reasonable attempt to settle his dispute before filing the instant action against the

State of California Department of Fish and Wildlife (Department) and Kimberly Nicol, a

Department manager (together Defendants). On appeal, Carian contends 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.

                   FACTUAL AND PROCEDURAL BACKGROUND

       In 1968, the Legislature enacted a statutory scheme to protect the State's

ecological reserves to, in turn, protect threatened or endangered native plants, wildlife, or

aquatic organisms. (Fish & Game Code, §§ 1580 et seq.) Under Fish and Game Code

section 1580, the Fish and Game Commission (Commission) has the authority to "adopt

regulations for the occupation, utilization, operation, protection, enhancement,

maintenance, and administration of [the State's] ecological reserves." Except as the

Commission's regulations allow, it is unlawful for persons to enter upon any ecological

reserve.2 (Fish & Game Code, § 1583.)



1      All statutory references are to the Code of Civil Procedure unless otherwise
specified.

2        Fish and Game Code section 1583 provides: "Except in accordance with the
regulations of the [C]ommission it is unlawful to enter upon any ecological reserves
. . . ."

                                              2
          Apparently in or about 1975, the Commission adopted a regulation that designated

Magnesia Spring Ecological Reserve (Reserve) in Riverside County as an ecological

reserve. (Cal. Code Regs., tit. 14, § 630(b)(76).) That regulation states in part: "Visitor

uses are dependent upon the provisions of applicable laws and upon a determination by

the [C]ommission that opening an area to such visitor use is compatible with the purposes

of the property. Visitor use is subject to the regulations below, in sections 550 and 550.5

of these regulations, as well as any other [C]ommission regulations that may apply."

(Cal. Code Regs., tit. 14, § 630(a).) That regulation further provides that the Department

owns and operates the Reserve and other ecological reserves listed in the regulation.

(Cal. Code Regs., tit. 14, § 630(b).) 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. (Cal. Const., art. IV, § 10(c).) 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 (i.e., Fish & Game Code, § 1587) allowing access to the Trail.

                                              3
Assembly Bill No. 880 was ultimately passed, enacting former Fish and Game Code

section 1587,3 effective as of January 2013, which provided:

          "(a) The Mirage Trail within the [Reserve] shall be open nine
          months of the year to recreational hiking, if the[C]ommission
          determines that the following conditions are met: [¶] . . . [¶]

          "(b) The [C]ommission shall determine seasonal openings and
          closures of the trail that will not conflict with the use of the area by
          Peninsular bighorn sheep, consistent with subdivision (a). . . ."
          (Former Fish & Game Code, § 1587, italics added.)

       On May 15, 2012, Carian filed the instant petition and complaint against

Defendants, 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.

Defendants demurred to the petition and complaint. The trial court issued a tentative

ruling sustaining Defendants' demurrer. On August 16, the trial court heard arguments of

counsel and initially took the matter under submission. However, on September 11, the

court vacated its order taking the matter under submission and set a further hearing on the

demurrer, stating that if the Governor signed Assembly Bill No. 880, which had recently

been passed by both houses of the Legislature, the new law would have a significant

effect on the demurrer. On September 25, the Governor signed Assembly Bill No. 880,

which added former section 1587 to the Fish and Game Code. (Stats. 2012, ch. 527, § 1.)

At the October 15 hearing on Defendants' demurrer, Carian, in effect, conceded the new




3      Fish and Game Code section 1587 was amended in 2013. (Stats. 2013, ch. 76
(A.B. 383), § 63; Stats. 2013, ch. 594 (A.B. 1097), § 1.)

                                              4
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. In support of his motion, he submitted a declaration of Eli Underwood, his

counsel, in which Underwood stated that "[b]ecause of this suit, the State of California

opened the trail." Carian also submitted a declaration of State Assemblyman Brian

Nestande, in which Nestande stated that Carian's lawsuit "was a material factor,

demonstrably influential, a substantial contribution, and one of the catalysts in helping to

get [Assembly Bill No.] 880 codified into law because it helped to focus the Legislature's

attention on whether the trail needed to be closed the entire year or whether it could only

be closed a few months out of the year." Carian also submitted a similar declaration of

State Assemblyman V. Manuel Perez containing a statement identical to Nestande's

statement quoted above.

       Defendants opposed Carian's section 1021.5 motion for attorney fees, arguing

Carian was not a "successful party" under the catalyst theory. Citing Graham v.

DaimlerChrysler Corp. (2004) 34 Cal.4th 553 (Graham), Defendants argued Carian had

not made a reasonable attempt to settle the dispute before filing his lawsuit and therefore

could not recover attorney fees under section 1021.5. Defendants argued Carian did not

make any reasonable settlement attempt because he "never pursued the established

                                             5
administrative remedy to resolve his grievance via the Commission (Fish & [Game]

Code, § 1583) . . . ."

       In reply, Carian argued that he made a reasonable attempt to settle the dispute

prior to filing his lawsuit, citing his October 2011 meeting with Nicol regarding

reopening the Trail and his February 2012 notice to the Attorney General of his intent to

seek to reopen the Trail. In support of his reply, Carian submitted his own declaration in

which he stated he met with Nicol on October 11, 2011, and requested the top portion of

the Trail be reopened to the public. He further stated that after Nicol initially agreed to

conditionally reopen the Trail, she purportedly withdrew those conditions in an April

2012 letter. Carian also submitted Underwood's reply declaration in which he stated that

on or about February 12, 2012, he conveyed to a deputy attorney general Carian's

proposal to settle his separate Public Records Act lawsuit against the Department. That

proposal included terms to reopen the Trail. Underwood stated that when Carian's

proposal was rejected by the deputy attorney general, Underwood told him the issue

would be dealt with in a separate suit.

       On May 28, 2013, the trial court issued an order denying Carian's motion for

attorney fees under section 1021.5. The court found Carian "did not make a reasonable

settlement effort before bringing this lawsuit" and referred to its reasons set forth in its

attached April 16 ruling, which stated in part:

           "More persuasive is [Defendants'] argument that [Carian] failed to
           make a reasonable settlement attempt before bringing the action,
           something that [Carian] argues he did by meeting with respondent
           Nicol and informing her of his interest in reopening the trail and
           informing the attorney general before filing this action. [Carian]

                                               6
accurately quotes a portion of the Graham opinion stating that at a
minimum a plaintiff must notify the defendant of his or her
grievances and proposed remedies and give the defendant the
opportunity to meet the demands within a reasonable time.
[Citation.] As the Supreme Court stated, however, 'what constitutes
a "reasonable" time will depend on the context.' [Citation.] As do,
in this Court's view, what are reasonable settlement efforts. While in
some circumstances, such as where a violation of the petitioner's
rights and the remedy is clear, simple notification and explanation of
the requested remedy might be sufficient to constitute a reasonable
settlement effort. But often this will only be a starting point for
reasonable settlement efforts. Indeed, many cases, particularly cases
such as this one where the factual background and potential
settlement are complicated, require more.

"[Defendants] contend[] that [Carian] did not pursue 'an established
administrative remedy' in an effort to resolve his grievances through
the Fish and Game Commission. As [Defendants] point[] out, a
legislative analysis of [Assembly Bill No.] 880 includes the
comment that the legislation might not have been necessary had
someone—such as [Carian]—'asked the [C]ommission for its
assistance on this matter, which seems to be a significant omission
by the proponents.' [Citation.] The Supreme Court stated that the
purpose of requiring reasonable settlement efforts is to ensure that
subsequent litigation is truly necessary: 'Awarding attorney fees for
litigation when the rights could have been vindicated by reasonable
efforts short of litigation does not advance that objective and
encourages lawsuits that are more opportunistic than authentically
for the public good.' [Citation.]

"[Carian] does not address the substance of this argument, instead
arguing [Fish and Game Code section 1583] is entitled 'trespass' and
does not prescribe an administrative remedy.

"[Carian] offers no evidence that it would have been futile to have
made further settlement efforts, in particular, to have gone to the
Fish and Game Commission for assistance or that such efforts would
be, in our Supreme Court's words, 'lengthy pre-litigation
negotiations.' This Court certainly does not find that in every
instance a plaintiff must go through a government agency's preferred
procedures to meet the requirement that it make a reasonable
settlement attempt. But on the record before it, and given that
[Carian] failed to even argue that it would have been futile or

                                  7
           excessively time consuming to approach the Commission as
           suggested in the legislative analysis, the Court finds [Carian] failed
           to make a reasonable settlement effort before bringing this lawsuit
           and therefore is not entitled to recover attorney's fees under section
           1021.5." (Italics added, fn. omitted.)

Because the court decided the motion on that ground, it declined to address the remaining

issues. Carian timely filed a notice of appeal.

                                       DISCUSSION

                                               I

                       Section 1021.5 and Graham's Catalyst Theory

       Under section 1021.5, a trial court may award attorney fees to a "successful party"

in an action that has "resulted in the enforcement of an important right affecting the

public interest if: (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 . . . 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. . . ." The

courts have taken a "broad, pragmatic view of what constitutes a 'successful party.' "

(Graham, supra, 34 Cal.4th at p. 565.) Section 1021.5 attorney fees may be awarded

"even when plaintiff's legal action does not result in a favorable final judgment" if there

is "a causal connection between the plaintiffs' lawsuit and the relief obtained." (Maria P.

v. Riles (1987) 43 Cal.3d 1281, 1290-1291.) The catalyst theory looks to the "impact of

the action, not the manner of its resolution." (Folsom v. Butte County Assn. of

Governments (1982) 32 Cal.3d 668, 685.) "Under the catalyst theory, attorney fees may

be awarded even when litigation does not result in a judicial resolution if the defendant

                                               8
changes its behavior substantially because of, and in the manner sought by, the

litigation." (Graham, at p. 560.) Furthermore, "to be eligible for attorney fees under

section 1021.5, a plaintiff must not only be a catalyst to defendant's changed behavior,

but the lawsuit must have some merit . . . and the plaintiff must have engaged in a

reasonable attempt to settle its dispute with the defendant prior to litigation." (Id. at

pp. 560-561, italics added.)

       Graham's requirement that a plaintiff make a reasonable attempt to settle the

dispute "is fully consistent with the basic objectives behind section 1021.5," including its

express requirement that the private enforcement be necessary. (Graham, supra, 34

Cal.4th at p. 577.) Graham stated:

           "Awarding attorney fees for litigation when those rights could have
           been vindicated by reasonable efforts short of litigation does not
           advance that objective and encourages lawsuits that are more
           opportunistic than authentically for the public good. Lengthy
           prelitigation negotiations are not required, nor is it necessary that the
           settlement demand be made by counsel, but a plaintiff must at least
           notify the defendant of its grievances and proposed remedies and
           give the defendant the opportunity to meet its demands within a
           reasonable time. [Citations.] What constitutes a 'reasonable' time
           will depend on the context." (Graham, supra, 34 Cal.4th at p. 577.)

"[S]ettlement efforts (or their absence) are relevant in every case to show that 'the

necessity and financial burden of private enforcement . . . are such as to make the award

appropriate . . . . ' [Citation.] In assessing such information in a particular case to

determine whether private enforcement was sufficiently necessary to justify an award of

fees, the trial court exercises its equitable discretion in light of all the relevant

circumstances." (Vasquez v. State of California (2008) 45 Cal.4th 243, 258-259, fn.


                                                9
omitted, italics added by Vasquez.) However, if the trial court finds that attempts to settle

the dispute by the plaintiff would have been futile, the plaintiff may not be barred from

recovering section 1021.5 attorney fees because of the lack of a settlement attempt.

(Cates v. Chiang (2013) 213 Cal.App.4th 791, 816-817.)

       On appeal, we apply the abuse of discretion standard in reviewing a trial court's

decision whether to award attorney fees under section 1021.5. (Graham, supra, 34

Cal.4th at p. 578.) In Wal-Mart Real Estate Business Trust v. City Council of San

Marcos (2005) 132 Cal.App.4th 614, 620, we stated:

          "Whether the applicant for attorney fees has proved section 1021.5's
          elements is a matter primarily vested in the trial court. [Citation.]
          'We review the entire record, attentive to the trial court's stated
          reasons in denying the fees and to whether it applied the proper
          standards of law in reaching its decision. [Citation.] We will
          reverse the trial court's decision only if there has been a prejudicial
          abuse of discretion, i.e., when there has been a manifest miscarriage
          of justice or " 'where no reasonable basis for the action is
          shown.' " ' "

A trial court abuses its discretion when it exceeds the bounds of reason given all of the

circumstances in the case. (Wal-Mart, at p. 625; Denham v. Superior Court (1970) 2

Cal.3d 557, 566.) Furthermore, in applying the abuse of discretion standard of review,

we give considerable deference to the trial court, including deference to the trial court's

reasonable inferences when two or more inferences can reasonably be drawn from the

record. (In re Woodham (2001) 95 Cal.App.4th 438, 443.)




                                             10
                                             II

                           Carian's Attempt to Settle the Dispute

       Carian contends the trial court erred in denying his motion for attorney fees

because he gave the Department notice of the dispute 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.

                                             A

       At the outset, Carian asserts we should apply the de novo, or independent,

standard of review rather than the abuse of discretion standard of review because the facts

are undisputed. We disagree. As discussed above, it is well established that the abuse of

discretion standard applies in reviewing a trial court's decision whether to award a

plaintiff section 1021.5 attorney fees. (Graham, supra, 34 Cal.4th at p. 578; Wal-Mart

Real Estate Business Trust v. City Council of San Marcos, supra, 132 Cal.App.4th at

p. 620.) Even assuming the underlying facts are undisputed, it remains the trial court's

duty to consider those facts and the circumstances of the case and exercise its discretion

in determining whether the requirements were satisfied for an award of attorney fees

under section 1021.5, and we can reverse the court's determination only if there is no

reasonable basis for it. (Wal-Mart, at p. 620.) Furthermore, in reviewing the trial court's

decision, we defer to its reasonable inferences when two or more inferences can

reasonably be drawn from the undisputed facts. (In re Woodham, supra, 95 Cal.App.4th

at p. 443.)



                                             11
                                             B

       Carian asserts the trial court erred by denying his motion for section 1021.5

attorney fees based on its finding he did not make a reasonable attempt to settle the

dispute before filing his action against Defendants.4 He argues his pre-lawsuit notice to

Defendants met Graham's requirements for making a reasonable attempt to settle the

dispute as a matter of law. Based on our reading of Graham, we conclude Carian

misinterprets and/or misapplies its standard for reasonable attempts to settle under section

1021.5. In describing that requirement, Graham stated in part: "[A] plaintiff must at least

notify the defendant of its grievances and proposed remedies and give the defendant the

opportunity to meet its demands within a reasonable time." (Graham, supra, 34 Cal.4th

at p. 577, italics added.) However, we, like the trial court, conclude the qualifying

language "at least" does not equate with "at most," as Carian apparently suggests.

Alternatively stated, we disagree with Carian's apparent assertion that a plaintiff

necessarily makes a reasonable attempt to settle when he or she simply notifies the

defendant of the grievance and proposed remedies, and that nothing more is required to

be done by the plaintiff. On the contrary, we believe the trial court correctly viewed

Graham's statement as a "starting point" in its determination of whether Carian made a

reasonable attempt to settle the dispute in the circumstances of this case. In Vasquez, the



4      By arguing he satisfied the requirements for section 1021.5 attorney fees under the
catalyst theory, Carian apparently concedes, as he must, that he was not the prevailing
party in his action against Defendants. As noted above, the trial court sustained
Defendants' demurrer to Carian's complaint without leave to amend.

                                             12
court expressly stated that in determining whether private enforcement was sufficiently

necessary to justify an award of section 1021.5 attorney fees, "the trial court exercises its

equitable discretion in light of all of the relevant circumstances." (Vasquez v. State of

California, supra, 45 Cal.4th at pp. 258-259, fn. omitted.) In exercising its discretion

whether to award a plaintiff section 1021.5 attorney fees, a trial court must consider not

simply whether the plaintiff notified the defendant of the dispute before filing the lawsuit,

but also must consider all of the relevant circumstances in the case in determining

whether the plaintiff made a reasonable attempt to settle the dispute before filing the

lawsuit. (Id. at pp. 258-259; Graham, at pp. 560-561, 577.) Therefore, contrary to

Carian's assertion, we conclude the trial court applied the correct legal standard in

determining whether he made a reasonable attempt to settle the dispute before filing his

lawsuit against Defendants.

       We also reject Carian's assertion the trial court erred by finding he did not make a

reasonable attempt to settle the dispute in the circumstances of this case. As discussed

above, the record shows Carian met with Nicol in October 2011 regarding reopening the

Trail; his counsel met in February 2012 with a deputy attorney general who rejected

Carian's request to reopen the Trail and was then informed Carian would deal with it in a

lawsuit separate from his pending public records lawsuit. For purposes of this opinion,

we assume arguendo that Defendants had, at least, some notice of Carian's dispute

regarding reopening the Trail before he filed the instant action. Contrary to Carian's

assertion, his notice to Defendants did not also constitute notice to the Commission

and/or the State for purposes of section 1021.5 attorney fees. As Defendants assert,

                                             13
California's state agencies are distinct and separate governmental entities and therefore

notice to one does not constitute notice to all. (See, e.g., Marine Forests Society v.

California Coastal Com. (2005) 36 Cal.4th 1, 48-49; People ex rel. Lockyer v. Superior

Court (2004) 122 Cal.App.4th 1060, 1076-1080; People v. Superior Court (Barrett)

(2000) 80 Cal.App.4th 1305, 1317.)

       However, as stated above, mere notice to a potential defendant is not necessarily

sufficient to meet Graham's requirement for a reasonable attempt to settle a dispute

before filing a lawsuit. In deciding that issue, the trial court properly considered all of the

circumstances in this case, including whether Carian's lawsuit was necessary to obtain the

changes or relief he sought (i.e., reopening of the Trail). One of the circumstances the

trial court considered was whether the Department was the only party Carian should have

contacted and made his request for reopening the Trail. The court concluded Carian

should also have contacted the Commission, which has the ultimate authority under

applicable statutes to allow or disallow access to the Trail, and not just the Department,

which merely enforces the regulations the Commission adopts. (Fish & Game Code,

§§ 1580, 1583.) Under that statutory scheme, the Commission adopted a regulation that

designated the Reserve (which includes the Trail) as an ecological reserve. (Cal. Code

Regs., tit. 14, § 630(b)(76).) That regulation states in part: "Visitor uses are dependent

upon the provisions of applicable laws and upon a determination by the [C]ommission

that opening an area to such visitor use is compatible with the purposes of the property.

Visitor use is subject to the regulations below, in sections 550 and 550.5 of these



                                              14
regulations, as well as any other [C]ommission regulations that may apply." (Cal. Code

Regs., tit. 14, § 630(a), italics added.)

       Based on the statutory and regulatory scheme for California's ecological reserves,

including the Reserve and the Trail, we conclude the trial court properly determined

Carian should have contacted the Commission and requested that it adopt regulations

allowing access to the Trail before he filed the instant action against the Department and

Nicol. The trial court could have reasonably concluded that had Carian contacted the

Commission before filing his action, then private enforcement (i.e., his action against

Defendants) may not have been necessary to obtain the changes he sought (i.e., reopening

of the Trail), and therefore Carian did not meet the requirements for an award of section

1021.5 attorney fees. (§ 1021.5; Graham, supra, 34 Cal.4th at p. 577; Vasquez v. State of

California, supra, 45 Cal.4th at pp. 258-259.) Contrary to Carian's assertion, the trial

court reasonably cited as support for its conclusion the legislative analysis of Assembly

Bill No. 880 that indicated the legislation might not have been necessary had someone

(e.g., Carian) contacted the Commission about the issue.

       We reject Carian's argument that he did not have to contact the Commission

regarding the dispute because Nicol (or other persons with or on behalf of the

Department) purportedly asserted the Department had the authority to reopen the Trail.

The trial court could have concluded that a reasonable plaintiff's attorney would have

researched the statutory and regulatory scheme for ecological reserves before filing a

lawsuit to reopen the Trail and, in so doing, presumably would have learned the

Commission, and not the Department, has the authority to adopt regulations to allow or

                                             15
disallow access to the Trail. Therefore, the court could have concluded Carian

unreasonably relied on the purported representations regarding the Department's

authority. Furthermore, even assuming the Department possesses certain discretion to

allow access to the Trail, that authority would not necessarily preclude other government

agencies or entities (e.g., the Commission) from having concurrent authority, and even

greater authority, to allow access to the Trail. Therefore, the trial court properly

concluded Carian did not make a reasonable attempt to settle the dispute because he did

not contact the Commission and request specific changes be made regarding access to the

Trail before filing the instant action. None of the cases cited by Carian (e.g., Connerly v.

State Personnel Bd. (2006) 37 Cal.4th 1169; Friends of the Trails v. Blasius (2000) 78

Cal.App.4th 810) are apposite to this case or otherwise persuade us to reach a contrary

conclusion.

                                              C

       Finally, Carian asserts the trial court erred by finding, in effect, he waived any

argument that it was futile for him to attempt to settle the dispute by contacting the

Commission because the Commission's response would have been the same as the

Department's response (i.e., rejection of his request). In denying Carian's section 1021.5

attorney fee motion, the trial court found in part: "[Carian] offers no evidence that it

would have been futile to have made further settlement efforts, in particular, to have gone

to the Fish and Game Commission for assistance." (Italics added.) As Defendants assert,

Carian waived any futility argument by not raising it below. (Resolution Trust Corp. v.

Winslow (1992) 9 Cal.App.4th 1799, 1810.) In any event, even had he raised that issue

                                             16
below, he did not, as the trial court found, submit any evidence below showing that any

notice or other contact to the Commission would have been futile. Carian's arguments on

appeal that any notice or contact to the Commission would have been futile are

speculative and not supported by any evidence in the record. We conclude the trial court

properly found Carian, in effect, waived any futility argument and/or did not carry his

burden to prove any attempt to settle the dispute by contacting the Commission would

have been futile. Cates v. Chiang, supra, 213 Cal.App.4th 791, cited by Carian, is

factually inapposite to this case and does not persuade us to reach a contrary conclusion.

                                             D

       Because we conclude the trial court properly found Carian did not make a

reasonable attempt to settle the dispute before filing his action against Defendants and

therefore did not meet that requirement for an award of section 1021.5 attorney fees, we

need not, and do not, address his argument that he satisfied all of the other requirements

for an award of attorney fees under section 1021.5.

                                      DISPOSITION

       The order is affirmed.


                                                                           McDONALD, J.
WE CONCUR:


NARES, Acting P. J.


HALLER, J.



                                            17
