Los Angeles Lawyer

The Magazine of the Los Angeles County Bar Association

MCLE Article: Catalyst for Change

By Donna M. Dean

Donna M. Dean is a senior associate practicing business litigation at Lurie, Zepeda, Schmalz & Hogan.

By reading this article and answering the accompanying test questions, you can earn one MCLE credit. To apply for credit, please follow the instructions on the test.

Since 1977, the private attorney general doctrine has allowed public interest lawyers as well as lawyers in private practice to obtain attorney's fees awards for performing legal services to successfully enforce important rights and public policies that benefit a large class of people.1 Courts have applied the doctrine to a wide variety of cases, including those involving the environment and zoning ordinances, the criminal justice system, abortion rights, First Amendment rights, the civil rights of employees and students, equal protection rights, the electoral process, and challenges to business practices.2

In order to obtain an attorney's fees award under Code of Civil Procedure Section 1021.5, the private attorney general fee statute, parties must meet several requirements: 1) they were the "successful party," 2) the action resulted in the enforcement of "an important right affecting the public interest," 3) the action conferred a "significant benefit" on the general public or "a large class of persons," 4) the necessity and financial burden of private enforcement made an award appropriate, and 5) the fees, in the interest of justice, will not be paid out of the recovery.3

Last year, in its decision in Graham v. DaimlerChrysler Corporation,4 the California Supreme Court clarified the definition of a "successful party" entitled to recover private attorney general fees pursuant to Section 1021.5. To appreciate the supreme court's clarification of "successful party," a review of the term's application in prior California case law is necessary.

In general, decisions of the California Court of Appeal have given the same treatment to the terms "successful party" under Section 1021.5 and "prevailing party" under other fee-shifting statutes. However, one significant departure from this general rule can be found in the "catalyst" theory, which was first recognized by the California Supreme Court in 1983 in Westside Community for Independent Living, Inc. v. Obledo.5 In Westside, the supreme court, citing federal precedent, announced the rule that "an award of attorney fees may be appropriate where 'plaintiffs' lawsuit was a catalyst motivating defendants to provide the primary relief sought....'"6 The court explained that "an attorney fee award may be justified even where a plaintiff's legal action does not lead to a favorable final judgment."7

In Westside, the plaintiffs sought a writ of mandate compelling the secretary of the Health and Welfare Agency to issue final regulations pursuant to Government Code Section 11135, which prohibits unlawful discrimination in any program or activity funded by the state.8 But the Westside court held that there was no causal connection between the plaintiff's action and the relief obtained because the draft regulations had been submitted before the lawsuit was filed and, during the pendency of the lawsuit, were subject to public comment--a course of action that resulted in the adoption of the final regulations.9 Accordingly, the court reversed the award of attorney's fees to the plaintiffs on the grounds that they were not the successful parties.10

An earlier California Supreme Court case had enunciated a similar rule without explicitly adopting the catalyst theory from the federal cases. In Folsom v. Butte County Association of Governments,11 the court affirmed an award of attorney's fees pursuant to Section 1021.5 following a settlement agreement between the parties. The Folsom court stated:

While California authority on the subject is sparse, common sense dictates that the determination of success under section 1021.5 must depend on more than mere appearance. As we said in Woodland Hills, the trial court must "realistically assess the litigation and determine, from a practical perspective, whether or not the action served to vindicate an important right...."12

The Folsom court also determined that "[t]he critical fact is the impact of the action, not the manner of its resolution."13 The court cited with approval the reasoning by Congress in enacting the Civil Rights Attorney's Fees Awards Act14 and the rule set forth in a federal case that calls for a comparison of "the situation immediately prior to the commencement of the suit" and "the situation today," and "the role, if any, played by the litigation in effecting any changes between the two."15

The rules set forth in Folsom and Westside laid the foundation for litigation regarding the meaning of "successful party" under Section 1021.5 as well as whether a particular party met the definition of a "catalyst" under the catalyst theory. Two subsequent California Supreme Court cases ruled that attorney's fees could be awarded under circumstances in which there is no final judgment in the plaintiff's favor but the plaintiff obtained the relief sought.16 In Press v. Lucky Stores, Inc., the plaintiffs' action became moot, but the state supreme court affirmed that they were entitled to private attorney general fees after they had achieved their litigation goals through a preliminary injunction.17 Similarly, in Maria P. v. Riles, the plaintiffs ultimately were awarded attorney's fees under Section 1021.5 after they obtained an injunction declaring that a section of the Education Code was unconstitutional18--even though the lawsuit was later dismissed as moot because of a legislative amendment deleting the unconstitutional portions of the section.19 Following the rules set forth in Westside and Folsom, the supreme court held that the plaintiffs "clearly obtained the relief they sought" with the issuance of the trial court's injunction.20

Rare Awards

These California Supreme Court decisions set the stage for a number of opinions by the California Court of Appeal interpreting the catalyst theory. In most of those cases, the court of appeal determined that the party seeking fees was not a catalyst and therefore was not a successful party entitled to Section 1021.5 attorney's fees.21 In many instances, the court determined that there was no causal link between the lawsuit and the change in the behavior of the defendant. For example, in Boccato v. City of Hermosa Beach, the plaintiff successfully enjoined the defendant city from enforcing a new resolution related to permit parking pending Coastal Commission approval and urged the Coastal Commission to send a letter to the city stating that a permit was required for the new resolution. But the court held that the defendant city's conduct was not caused by the lawsuit but was the result of the Coastal Commission's letter.22 Likewise, in Crawford v. Board of Education, the court held that the parties seeking attorney's fees--interveners in a desegregation lawsuit against the Los Angeles Unified School District--were not the successful parties because the results of the desegregation lawsuit were due to the passage of a ballot measure and not the participation of the interveners in the lawsuit.23 The fact that one of the interveners was instrumental in the passage of the ballot measure did not qualify that party as a successful party because, as the court stated, "[T]he [private attorney general] doctrine simply does not, nor should it, encompass successful lobbying efforts by those who seek to influence the Legislature or the electorate on any particular issue."24 The court noted that:

At bottom, the inquiry is an intensely factual, pragmatic one that frequently requires courts to go outside the merits of the precise underlying dispute and focus on the condition the fee claimant sought to change. [Citation omitted.] With that condition as a benchmark the inquiry becomes "whether as a practical matter the outcome, in whatever form realized, is one to which the plaintiff fee claimant's efforts contributed in a significant way, and which does involve an actual conferral of benefit or relief from burden when measured against the benchmark condition."25

Using the same reasoning, the court in Leiserson v. City of San Diego held that if the plaintiff could not present evidence of the motivation for the city's change in its behavior two years after he filed his lawsuit, the mere inference that the change was motivated by the lawsuit was not sufficient to make the plaintiff a successful party under the private attorney general fee statute.26 However, in Californians for Responsible Toxics Management v. Kizer, the court followed federal precedent and stated the following rule: "When action is taken by the defendant after plaintiff's lawsuit is filed, the chronology of events may permit the inference that the two events are causally related...."27 This inference shifts the burden to the defendant to offer a rebuttal.28 No other cases have applied this analysis to determine whether a party meets the causation requirement under the catalyst theory.

There are only two cases in which the court of appeal has confirmed trial court awards of private attorney general fees under the catalyst theory.29 In the first, Wallace v. Consumers Cooperative of Berkeley, Inc., the trial court awarded private attorney general fees to the plaintiff organization that successfully challenged the validity of mandatory minimum retail milk prices.30 After submitting several unsuccessful petitions to the director of the Department of Food and Agriculture requesting that he suspend the retail milk price regulations, the plaintiff decided to challenge the legality of the regulation through litigation. Although the DFA director obtained a temporary restraining order and preliminary injunction against the plaintiff, the court stated that the plaintiff had "made a colorable showing that it will prevail at a trial on the merits...."31 The parties entered into settlement negotiations and ultimately settled the case by having the director agree to hold public hearings on the issue of the suspension of the minimum milk retail prices in exchange for the plaintiff dropping its challenge to the statutory and administrative procedures as moot. After this settlement was reached, the director issued orders suspending the minimum retail milk prices. The trial court awarded private attorney general fees to the plaintiff, and the court of appeal upheld the award, on the grounds that "the litigation set in motion the process which eventually resulted in the suspension."32

In the second case, California Common Cause v. Duffy, the plaintiffs sought to stop the sheriff of San Diego County from distributing postcards calling for the removal of Chief Justice Rose Bird because the sheriff's action involved the illegal expenditure of public monies and public personnel in political campaigning. At a hearing on an ex parte application for a temporary restraining order, the trial judge encouraged the parties to negotiate and, as a result, the sheriff agreed to cease distributing the postcards. In turn, the plaintiffs proceeded to drop their application for a temporary restraining order. The trial court later granted summary judgment to the plaintiffs on their declaratory relief claim, finding that the sheriff's activities were indeed an illegal expenditure of public monies and personnel on political campaigning. Nevertheless, the trial court denied injunctive relief because of the sheriff's agreement to cease distributing the postcards. The trial court awarded private attorney general fees to the plaintiffs, and the court of appeal upheld the award, on the grounds that the plaintiffs had obtained the full relief they sought because they obtained a declaration that the sheriff's activities were illegal and they caused the sheriff to cease those activities. Thus, injunctive relief was not necessary, and "the lawsuit was a material factor in halting the ongoing distribution of anti-Bird postcards through the Sheriff's Department."33

In a case involving the catalyst theory that was decided after Wallace and California Common Cause, the court of appeal held that the prevailing defendant had established a right to private attorney general fees and remanded for a determination of the amount.34 In City of Sacramento v. Drew, the defendant, Charles Drew, prevailed on a summary judgment motion in an action brought by the city of Sacramento to declare the validity of a special tax assessment district. Before the lawsuit, Drew had sent a letter of protest to the city claiming that the special tax assessment district was unconstitutional. The city brought a validation proceeding to determine whether the assessment was proper. Drew filed an answer as an interested person and then prevailed on summary judgment.

But the trial court denied Drew's request for private attorney general fees on the grounds that the special tax assessment "presumably" would have been declared invalid regardless of Drew's participation, and Drew "belatedly" raised the prevailing legal theory. The court of appeal reversed, holding that Drew met the requirements for an award of private attorney general fees, and remanded for the purpose of determining the amount of those fees.

These court of appeal decisions, coupled with the prior California Supreme Court cases, failed to enunciate a general, predictable rule for awarding private attorney general fees under the catalyst theory. Subsequently, in 2001, the U.S. Supreme Court virtually abolished the catalyst theory under federal private attorney general statutes.

In Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources,35 the U.S. Supreme Court held that absent a judgment on the merits or other "material alteration of the legal relationship of the parties" (such as a consent decree), a party cannot be deemed a prevailing party entitled to attorney's fees.36 The Supreme Court stated that while a defendant's voluntary change in conduct may serve to accomplish a plaintiff's litigation objectives, the defendant's action "lacks the necessary judicial imprimatur" to support an award of attorney's fees.37 Given the fact that many of the California Supreme Court and Court of Appeal cases regarding the catalyst theory were based upon federal precedent, the U.S. Supreme Court's decision in Buckhannon called into question the continued validity of the catalyst theory under the California private attorney general fee statute.

Balancing Competing Policies

Hence the importance of Graham v. DaimlerChrysler Corporation,38 in which a split California Supreme Court affirmed the existence of the catalyst theory under California law and further clarified the rule. In Graham, DaimlerChrysler incorrectly marketed and overstated the towing capacity of one of its 1998 and 1999 truck models. The reduced towing capacity posed a potential risk to the drivers of the truck. By February 1999, DaimlerChrysler established a response team to handle the problem and, by June 1999, advised its customers of the misinformation and began to formulate a plan of remedial measures. In July 1999, the Santa Cruz County district attorney threatened legal action against DaimlerChrysler and requested information from the corporation. In early August 1999, the California attorney general joined the Santa Cruz County district attorney in threatening legal action. The plaintiffs, who were purchasers of the truck at issue, filed suit on August 23, 1999. In September 1999, DaimlerChrysler issued an offer to repurchase or replace all of the affected trucks. Thereafter, the trial court sustained DaimlerChrysler's demurrer without leave to amend and dismissed the plaintiffs' complaint as moot. The parties continued to litigate the plaintiffs' entitlement to fees, however, for more than a year after the case was dismissed. The trial court held a lengthy evidentiary hearing and then awarded attorney's fees, finding that the plaintiffs were the successful parties under the private attorney general fee statute and determining that the plaintiffs' lawsuit, rather than the threatened legal action by the California attorney general and the Santa Cruz County district attorney, caused DaimlerChrysler to issue its offer to repurchase or replace the trucks. The court of appeal affirmed, noting the decision in Buckhannon but declining to follow it. Instead, the court of appeal stated that the catalyst theory has long been recognized in California.

The California Supreme Court affirmed the court of appeal's decision and in so doing upheld the catalyst theory despite the decision in Buckhannon. The supreme court held that the term "prevailing party" under federal statutes is different from the term "successful party" under the California private attorney general fee statute. Moreover, the court rejected DaimlerChrysler's policy argument that the catalyst theory engenders time-consuming fee litigation. The court adopted a two-pronged test for determining whether a party can be deemed a successful party under the catalyst theory. The trial court must determine that 1) a causal connection exists between the lawsuit and the relief obtained, and 2) the lawsuit is not "'frivolous, unreasonable or groundless' [citation omitted], in other words that its result was achieved 'by threat of victory, not by dint of nuisance and threat of expense.'"39 According to the supreme court, a trial court can make a decision whether the second prong is met in a manner akin to a trial court's determination whether or not to issue a preliminary injunction. Further, the court may reach its decision regarding the second prong by relying on declarations or after an abbreviated evidentiary hearing.

In response to an amicus brief submitted by the California attorney general, the Graham court also adopted another limitation on the catalyst theory. The court held that a plaintiff seeking attorney's fees under the catalyst theory must have made a reasonable attempt to settle the matter before litigation, explaining that what constitutes a reasonable attempt to settle will depend on the context and thus involves a fact-intensive inquiry.40 The court of appeal found that the trial court had concluded that there was a causal connection between the lawsuit and DaimlerChrysler's change in policy. But the appellate court remanded the matter for a determination regarding the merits of the suit and whether the plaintiffs had made a reasonable attempt to settle the matter before filing a lawsuit.

The court appears to have reached its decision regarding these rules by balancing two competing policies: 1) the policy of encouraging lawsuits in the public interest, and 2) the policy of discouraging extortionate lawsuits. Under the rules set forth in Graham, as well as the existing rules for the application of the catalyst theory, attorneys considering taking on a public interest lawsuit with the anticipation of recovering attorney's fees will need to consider several issues in addition to the elements set forth in Section 1021.5.

The first is prelitigation settlement discussions. Since the Graham decision will require a case-by-case determination of the reasonableness of prelitigation settlement discussions, attorneys will need to determine how much time to allow for settlement discussions before filing a lawsuit. Prior to Graham, in the cases in which private attorney general fees were allowed, the settlement discussions ranged from nonexistent (or not discussed)41 to a letter of protest or request to cease unlawful activity42 to more lengthy negotiations.43 If there is an urgent need for litigation to prevent impending illegal action, one letter or telephone call may suffice. But if no urgency exists, counsel should engage in serious settlement negotiations before filing a lawsuit in order to preserve the right to private attorney general fees under the catalyst theory.

Counsel taking on a case hoping to recover private attorney general fees must also consider the ability to demonstrate the merits of the action. The proof could include declarations and documentary evidence but may also require testamentary evidence at an evidentiary hearing. If a case is resolved quickly, before any discovery is taken, counsel may find it difficult to present sufficient evidence. Although Graham does not specifically authorize limited discovery to elicit the necessary evidence, a court may allow it. The policy reasons that the Graham court enunciated in encouraging public interest litigation as well as early settlement of disputes support allowing limited discovery. The more prudent course, however, would be to obtain the necessary documentary evidence during settlement discussions.

Although the decision in Graham affirmed the existence of the catalyst theory in California and added some requirements, it did little to clarify the rule regarding the often litigated issue of the causal connection between the plaintiff's lawsuit and the relief obtained. Courts repeatedly have denied recovery of private attorney general fees under the catalyst theory when a causal factor other than the lawsuit--such as the legislative process,44 administrative proceedings initiated by state agencies,45 or another pending case46--influenced the change in the defendant's conduct, or when the lawsuit was filed after some action had been initiated by the defendant--such as after an agency began the process of promulgating regulations or after a city commenced its consideration of whether to amend an ordinance. With these precedents in mind, counsel considering a lawsuit that could result in private attorney general fees should investigate whether state agencies have already taken some action or whether the proposed defendant has already begun to take corrective actions through internal processes. Even if the proposed lawsuit would contribute to or hasten such actions or processes, a court will likely not award private attorney general fees.47 Thus, during the investigation of the potential lawsuit and the prelitigation settlement negotiations, counsel should not only look for evidence of the merits of the proposed lawsuit but also evidence to prove the causal connection between the lawsuit and the defendant's action, with a specific focus on the absence of other factors that could be determined to be the catalyst.

Although Graham preserved the catalyst theory under California law, the weight of the California Supreme Court and Court of Appeal decisions demonstrates that private attorney general fees are not easily obtained. As the dissent in Graham observes, in those cases in which fees have been allowed under the catalyst theory, there has been some "material alteration of the legal relationship of the parties" or a "judicial imprimatur" as required under Buckhannon.48 In addition, the numerous cases determining that there was no causal connection between the lawsuit and the defendant's change of conduct--even in circumstances in which the defendant's change of conduct occurred after the lawsuit was filed--demonstrate a judicial proclivity to avoid awarding private attorney general fees except in the most compelling cases. Even though the decision in Graham has preserved the catalyst theory, the decision likely will not result in a flood of extortionate lawsuits (as the dissent in Graham fears), because before attorneys seeking fees under the catalyst theory file suit, they must not only conduct a careful evaluation of the merits of their cases but also engage in serious settlement discussions. Thus, although the decision in Graham upholds the policy of encouraging private enforcement of important public rights, the new requirements under the catalyst theory, along with the established case law regarding the necessary causal connection between the lawsuit and the defendant's action, restrict the broad language contained in the earlier California Supreme Court cases and substantially reduce the number of situations in which private attorney general fees are recoverable.

SIDEBAR: De Novo Standard of Review

An important issue currently under review by the California Supreme Court is under what circumstances an appellate court may apply a de novo standard of review in determining whether an action was sufficient to justify an award of attorney's fees under Code of Civil Procedure Section 1021.5, the private attorney general fee statute.1

In Serrano v. Priest, the California Supreme Court noted that the "experienced trial judge is the best judge of the value of the professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong."2 After the enactment of Section 1021.5, the California Court of Appeal took this language from Serrano-which clearly applied only to the adequacy of fees to be awarded under Section 1021.5-and, without any discussion, simply asserted that abuse of discretion was the standard of review with respect to all the statutory prerequisites for the award of fees under Section 1021.5.3

The supreme court has followed suit, repeating the conclusion of the court of appeal, without much commentary, that the standard of review governing Section 1021.5 attorney fee entitlement is abuse of discretion.4 Yet, in each of the cases in which the supreme court has done so, it has essentially conducted a de novo review of the trial court's decision by affording no deference to the trial court. In addition, further confusion has ensued over court of appeal decisions stating that "[d]etermining the statutory basis for an attorney fee award is a legal question subject to de novo review."5

The Ninth Circuit applies a de novo standard of review on issues of law and a party's entitlement to fees under 42 USC Section 1988 and employs an abuse of discretion standard of review regarding the adequacy of fees.6 Both Code of Civil Procedure Section 1021.5 and 42 USC Section 1988 are codifications of the common law private attorney general doctrine. Furthermore, because "[t]he Legislature relied heavily on federal precedent when enacting [Section 1021.5]…California courts often look to federal decisions when interpreting it."7

The threshold issue of whether a case has resulted in the enforcement of an important right affecting the public interest should be subject to de novo review. Many reviewing courts, including the California Supreme Court, have explicitly applied a de novo standard-and they have used the language of abuse of discretion while actually conducting a de facto de novo analysis based upon the trial court's legal errors.8 In addition, a de novo standard of review would be consistent with the de novo review of the legal basis for other statutory fee awards.9

A de novo standard of review better serves a host of public policies:

• The encouragement of the private enforcement of important rights affecting the public interest.
• Uniformity and predictability in judicial decision making.
• Judicial efficiency and quality.
• Judicial integrity.

Whether an important right has been vindicated and whether a significant benefit has been conferred require determinations regarding public policy. Given the benefit of appellate collegiality and plurality as well as the time and opportunity for more thoughtful debate on appeal, appellate judges are better suited to make these determinations than are trial judges.

Private litigants and lawyers will be discouraged from enforcing important rights affecting the public interest if they cannot discern some reasonable level of certainty that Section 1021.5 fees will be awarded. That certainty is best promoted by de novo review. Allowing appellate judges to make judgments regarding Section 1021.5 fees will promote statewide consistency in the interpretation and application of law and avoid inconsistent trial judge determinations as to which rights can be deemed important.-D.M.D.

1 Department of Conservation v. El Dorado County, California Supreme Court Case No. S116870, review granted, Aug. 13, 2003, request for briefing on issue of standard of review ordered, Sept. 15, 2004.
2 Serrano v. Priest, 20 Cal. 3d 25, 49 (1977).
3 See, e.g., Brentwood Ass'n for No Drilling, Inc. v. City of Los Angeles, 134 Cal. App. 3d 491, 507 (1982).
4 Baggett v. Gates, 32 Cal. 3d 128, 142-43 (1982); Westside Cmty. for Indep. Living, Inc. v. Obledo, 33 Cal. 3d 348, 369 (1983); Press v. Lucky Stores, Inc., 34 Cal. 3d 311 (1983); Maria P. v. Riles, 43 Cal. 3d 1281 (1987).
5 Downen's, Inc. v. City of Hawaiian Gardens Redev. Agency, 86 Cal. App. 4th 856, 860 (2001). See also Akins v. Enterprise Rent-A-Car Co., 79 Cal. App. 4th 1127, 1132-33 (2000); Honey Baked Hams, Inc. v. Dickens, 37 Cal. App. 4th 421, 424 (1995).
6 See, e.g., Watson v. County of Riverside, 300 F. 3d 1092, 1095 (9th Cir. 2002), cert. denied, 538 U.S. 923 (2003); Cabrales v. County of Los Angeles, 935 F. 2d 1050, 1052 (9th Cir. 1991).
7 Westside, 33 Cal. 3d at 352 n.5.
8 See, e.g., Pacific Legal Found. v. California Coastal Comm'n, 33 Cal. 3d 158, 167 (1982); Baggett, 32 Cal. 3d at 143; Hull v. Rossi, 13 Cal. App. 4th 1763, 1768 (1993); City of Sacramento v. Drew, 207 Cal. App. 3d 1287, 1298 (1989).
9 See, e.g., Sessions Payroll Mgmt., Inc. v. Nobel Constr. Co., 84 Cal. App. 4th 671, 677 (2000) (Civ. Code §1717); see also Carver v. Chevron U.S.A., Inc., 97 Cal. App. 4th 132, 142 (2002); Bussey v. Affleck, 225 Cal. App. 3d 1162, 1165 (Code Civ. Proc. §1033.5(a)(10)).

Endnotes to main text

1 The California Supreme Court first enunciated the private attorney general fee doctrine in 1977. Serrano v. Priest, 20 Cal. 3d 25 (1977). That same year, after Serrano, the California Legislature enacted Code of Civil Procedure §1021.5 to codify the doctrine and its underlying policy. The purpose of the private attorney general doctrine is to encourage suits enforcing strong public policies that benefit a large class of people by awarding attorney's fees to the successful party. Woodland Hills Residents Ass'n v. City Council, 23 Cal. 3d 917, 933 (1979).
2 7 Witkin, California Procedure, Judgment §§230-240A (4th ed. 1997 & Supp.).
3 Code Civ. Proc. §1021.5.
4 Graham v. DaimlerChrysler Corp., 34 Cal. 4th 553 (2004).
5 Westside Cmty. for Indep. Living, Inc. v. Obledo, 33 Cal. 3d 348, 353 (1983).
6 Id. (quoting Robinson v. Kimbrough, 652 F. 2d 458, 465 (5th Cir. 1981)).
7 Id. at 352.
8 Id. at 350.
9 Id. at 354-56.
10 Id.
11 Folsom v. Butte County Ass'n of Gov'ts, 32 Cal. 3d 668 (1982).
12 Id. at 685 (quoting Woodland Hills Residents Ass'n v. City Council, 23 Cal. 3d 917, 938 (1979)).
13 Id.
14 Id. at 685-86.
15 Id. at 685 n.31 (citing F&M Schaefer Corp. v. C. Schmidt & Sons, Inc., 476 F. Supp. 203, 206-07 (S.D. N.Y. 1979)).
16 Press v. Lucky Stores, Inc., 34 Cal. 3d 311 (1983); Maria P. v. Riles, 43 Cal. 3d 1281 (1987).
17 Press, 34 Cal. 3d at 315-16, 321.
18 Maria P., 43 Cal. 3d at 1287.
19 Id. at 1288.
20 Id. at 1292-93.
21 See, e.g., Boccato v. City of Hermosa Beach, 158 Cal. App. 3d 804 (1984); Miller v. California Comm'n on the Status of Women, 176 Cal. App. 3d 454 (1985); Crawford v. Board of Educ., 200 Cal. App. 3d 1397 (1988); Leiserson v. City of San Diego, 202 Cal. App. 3d 725 (1988); Californians for Responsible Toxics Mgmt. v. Kizer, 211 Cal. App. 3d 961 (1989); Urbaniak v. Newton, 19 Cal. App. 4th 1837 (1993); Olsen v. Breeze, Inc., 48 Cal. App. 4th 608 (1996); Suter v. City of Lafayette, 57 Cal. App. 4th 1109 (1997); Meister v. The Regents of the Univ. of Cal., 67 Cal. App. 4th 437 (1998); Schmier v. Supreme Court, 96 Cal. App. 4th 873 (2002); Baxter v. Salutary Sportsclubs, Inc., 122 Cal. App. 4th 941 (2004).
22 Boccato, 158 Cal. App. 3d at 811-12.
23 Crawford, 200 Cal. App. 3d at 1407-08.
24 Id. at 1408.
25 Id. at 1407 (quoting Folsom v. Butte County Ass'n of Gov'ts, 32 Cal. 3d 668, 685 (1982)).
26 Leiserson, 202 Cal. App. 3d at 736-37.
27 Californians for Responsible Toxics Mgmt. v. Kizer, 211 Cal. App. 3d 961, 968 (1989).
28 Id.
29 Wallace v. Consumers Coop. of Berkeley, Inc., 170 Cal. App. 3d 836 (1985); California Common Cause v. Duffy, 200 Cal. App. 3d 730 (1987).
30 Wallace, 170 Cal. App. 3d at 841-42.
31 Id. at 844.
32 Id. at 846.
33 California Common Cause, 200 Cal. App. 3d at 744.
34 City of Sacramento v. Drew, 207 Cal. App. 3d 1287 (1989).
35 Buckhannon Board & Care Home, Inc. v. West Virginia Dep't of Health & Human Res., 532 U.S. 598, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001).
36 Id., 532 U.S. at 604-05.
37 Id.
38 Graham v. DaimlerChrysler Corp., 34 Cal. 4th 553 (2004). In response to a request from the Ninth Circuit Court of Appeals for a clarification of California law regarding the catalyst theory, the California Supreme Court also issued an opinion on the same day it issued Graham in a companion case. Tipton-Whittingham v. City of Los Angeles, 34 Cal. 4th 604 (2004).
39 Graham, 34 Cal. 4th at 575 (quoting Buckhannon, 532 U.S. at 628 (dissent by Ginsburg, J.)).
40 Id. at 577.
41 Woodland Hills Residents Ass'n v. City Council, 23 Cal. 3d 917 (1979); Press v. Lucky Stores, Inc., 34 Cal. 3d 311 (1983); Maria P. v. Riles, 43 Cal. 3d 1281 (1987); Folsom v. Butte County Ass'n of Gov'ts, 32 Cal. 3d 668 (1982).
42 City of Sacramento v. Drew, 207 Cal. App. 3d 1287, 1292 (1989) (letter of protest sent to city, then city filed validation action); California Common Cause v. Duffy, 200 Cal. App. 3d 730, 739 (1987) (request to cease unlawful activity made four days before suit was filed).
43 Wallace v. Consumers Coop. of Berkeley, Inc., 170 Cal. App. 3d 836, 840 (1985) (several petitions submitted to director of the Department of Food and Agriculture).
44 Crawford v. Board of Educ., 200 Cal. App. 3d 1397 (1988).
45 Boccato v. City of Hermosa Beach, 158 Cal. App. 3d 804 (1984).
46 Olsen v. Breeze, Inc., 48 Cal. App. 4th 608 (1996).
47 Meister v. The Regents of the Univ. of Cal., 67 Cal. App. 4th 437 (1998).
48 Graham v. DaimlerChrysler Corp., 34 Cal. 4th 553, 592-93 (2004).

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