Filed 9/2/26 Grover H2O v. City of Grover Beach CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
GROVER H2O, et al., 2d Civ. No. B346833
(Super. Ct. No. 24CV-0264)
Plaintiffs and Appellants, (San Luis Obispo County)
v.
CITY OF GROVER BEACH,
et al.,
Defendants and
Respondents;
DANIEL RUSHING,
Real Party in Interest.
Grover H2O, Debra Peterson, and Brenda Auer appeal the
trial court’s denial of private attorney general fees. (Code of Civ.
Proc., § 1021.5.)1 The trial court had granted appellants’ first
1 Undesignated statutory references are to the Code of Civil
Procedure.
cause of action for writ of mandate after the City of Grover Beach
(City) rejected a recall petition aimed at Daniel Rushing, a City
councilmember. The trial court found the action did not confer a
significant benefit on the general public. We conclude otherwise.
We will reverse the trial court’s fee denial and remand for further
proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
On April 4, 2024, appellants submitted a recall petition for
councilmember Daniel Rushing. The petition set forth seven
grounds for recall:
(1) “Dan Rushing failed to do his due diligence for the
citizens of Grover Beach. He did not vet Central Coast
Blue service providers or evaluate their fiscal
performance in other county agencies.”
(2) “Dan Rushing thinks he knows what’s best for the
people of Grover Beach and doesn’t listen to or seek out
the needs or wisdom of his constituents.”
(3) “Dan Rushing settled for water at any price rather than
water at a fiscally sustainable cost.”
(4) “Dan Rushing committed the ratepayers of Grover
Beach to a $33.5m share of a project to expand Arroyo
Grande and Pismo Beach without asking the citizens of
Grover Beach if they approve.”
(5) “Dan Rushing voted to make Grover Beach the
industrial area of Pismo Beach and Arroyo Grande.”
(6) “Dan Rushing approved a project with no permits,
escalating costs, and environmental risks.”
(7) “Dan Rushing approved a project to tear up newly
repaired residential streets for 16 wells, a mile of
pipelines, and a wastewater treatment plant in Grover
neighborhoods.”
2
In a letter dated April 15, 2024, the City Clerk advised that
the fifth and seventh grounds “must be amended to remove
information that is false, misleading, and inconsistent with”
applicable Elections Code requirements. The letter relied upon
Elections Code section 11042, which provides in part that the
elections official “shall ascertain if the proposed form and
wording of the petition meets the requirements of this chapter.”
(Elec. Code, § 11042, subd. (a).) On April 24, appellants
submitted a revised recall petition removing the two disputed
statements.
On April 26, 2024, appellants filed a verified petition for
writ of mandate and complaint for declaratory and injunctive
relief. Appellants alleged the Elections Code did not allow the
City to “unilaterally” order the removal of language from the
recall petition.
The City contended “it is well established . . . that elections
officials have a ministerial duty to reject petitions containing
false and misleading information,” and that the remedy provided
under Elections Code section 11042.5 was not intended to be
exclusive. That section provides for a writ of mandate or
injunction upon proof that, for a petition to recall a local officer,
“any or all of the statement of the proponents or the answer of
the officer . . . is false, misleading, or inconsistent with the
requirements of this chapter.” (Elec. Code, § 11042.5, subd. (b).)
The trial court granted appellants’ first writ of mandate
cause of action for failure to comply with the Elections Code. The
court framed the key question as follows: “whether elections
officials are without the power to reject recall petitions containing
false or misleading information, so long as the petitions
substantially comply with the statutory formatting and content
requirements . . . .” The court concluded the City lacked
authority “to make determinations regarding the veracity of
3
statements in a recall petition . . . . [T]he City ha[d] a ministerial
duty to approve, and allow circulation of, the April Recall
Petition.”2 A writ of mandate issued on May 24, 2024.
In November 2024, the voters recalled Rushing. In
December, appellants filed a motion for private attorney general
fees. (§ 1021.5.) The trial court denied the motion. The court
found the first cause of action enforced an important right “by
limiting the elections official to the ministerial duty of
determining whether a recall petition meets the technical
requirements set forth in the Elections Code and prohibiting the
elections officials [sic] from expanding her role to include
discretionary decisions regarding the veracity of statements
made in a recall petition.”
But the trial court determined the litigation did not confer
a significant benefit on the general public. The court observed
that “regardless of this action, the City had certified a petition
seeking Rushing’s recall.” Thus, the court determined appellants
needed to show the two contested statements “mattered in some
way that benefited the public.” It concluded appellants failed to
do so.
DISCUSSION
“[E]ligibility for section 1021.5 attorney fees is established
when ‘(1) plaintiffs’ action “has resulted in the enforcement of an
important right affecting the public interest,” (2) “a significant
benefit, whether pecuniary or nonpecuniary has been conferred
on the general public or a large class of persons” and (3) “the
necessity and financial burden of private enforcement are such as
2 The court did not reach the issue of whether Elections
Code section 11042.5 was the exclusive remedy available to
elections officials to challenge recall petitions.
4
to make the award appropriate.”’” (Conservatorship of Whitley
(2010) 50 Cal.4th 1206, 1214 (Whitley).)3
“[I]n determining the ‘importance’ of the particular
‘vindicated’ right, courts should generally realistically assess the
significance of that right in terms of its relationship to the
achievement of fundamental legislative goals.” (Woodland Hills
Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 936
(Woodland Hills).)
“[T]he ‘significant benefit’ that will justify an attorney fee
award need not represent a ‘tangible’ asset or a ‘concrete’ gain
but, in some cases, may be recognized simply from the
effectuation of a fundamental constitutional or statutory policy.”
(Woodland Hills, supra, 23 Cal.3d at p. 939.) However, section
1021.5 attorney fees are not appropriate whenever a statute is
enforced. (Ibid.) Nor are such fees warranted in every election
law case. (Travis v. Brand (2023) 91 Cal.App.5th 996, 1011.)
Instead, a trial court should “determine the significance of the
benefit, as well as the size of the class receiving benefit, from a
realistic assessment, in light of all the pertinent circumstances, of
the gains which have resulted in a particular case.” (Woodland
Hills at pp. 939-940.)
3 Section 1021.5 provides in pertinent part: “Upon motion,
a court may award attorneys’ fees to a successful party against
one or more opposing parties in any action which 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, 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.”
5
Generally, the award or denial of section 1021.5 attorney
fees is reviewed for abuse of discretion. (Sandlin v. McLaughlin
(2020) 50 Cal.App.5th 805, 828 (Sandlin).)
Respondents contend the litigation did not enforce an
important public right because “the right to submit recall
petitions containing false or misleading information cannot be
considered an important public right.” Respondents
mischaracterize the right at issue. They assume that the
statements in the recall petition are, in fact, false or misleading.
But the trial court’s ruling enforced appellants’ ability to exercise
their free speech and petition rights without officials unilaterally
determining the truth or falsity of—and then censoring—their
views under the aegis of a statute designed to verify the “form
and wording of the petition . . . .” (Elec. Code, § 11042, subd. (a).)
Our Supreme Court has recognized that “[f]reedom of
speech is ‘a right which is at the fountainhead of all our liberties’”
and that “‘[t]he right [to petition] in California is . . . vital to a
basic process in the state’s constitutional scheme—direct
initiation of change by the citizenry through initiative,
referendum, and recall.’” (Press v. Lucky Stores, Inc. (1983) 34
Cal.3d 311, 319 (Lucky Stores), italics added; Cal. Const., art. I,
§ 2 [liberty of speech]; Cal. Const., art. II, § 13 [power to recall
officers].) The trial court did not abuse its discretion in finding
appellants enforced an important right.
We conclude, however, that the court did abuse its
discretion in finding the litigation did not confer a significant
benefit on the general public. The court found that “to show that
certification of the April Recall Petition itself constituted a
significant benefit to the general public[,] . . . Petitioners needed
to show the differences between the two recall petitions mattered
in some way that benefited the public.” But this unduly narrow
6
framing discounts the less tangible benefits that flow from the
ruling prohibiting unilateral official censorship.
Lucky Stores informs our conclusion. There, plaintiffs
attempted to gather signatures for a ballot initiative in front of a
supermarket owned by the defendant. After store officials
ordered plaintiffs to stop, plaintiffs obtained injunctive relief in
the superior court. (Lucky Stores, supra, 34 Cal.3d at p. 316.)
Our Supreme Court rebuffed the defendant’s contention
that the litigation did not confer a significant benefit on the
public. After noting the vitality of the rights to free speech and
petition, the Court observed that “[w]hile these rights are by
nature individual rights, their enforcement benefits society as a
whole. Indeed, only by protecting each individual’s free speech
and petition rights will society’s general interests in these rights
be secured.” (Lucky Stores, supra, 34 Cal.3d at p. 319.) Plaintiffs
had no personal pecuniary interest but “sought to enforce their
fundamental rights to speak freely and to petition the
government. Litigation enforcing these rights necessarily confers
a significant benefit on society as a whole.” (Id. at p. 319, fn. 7.)
Here, appellants’ litigation likewise enforced the
fundamental rights of free speech and petition. Given the gravity
of these rights, this enforcement conferred a significant public
benefit, regardless of whether the contested statements in the
petition impacted the Rushing recall effort. The significant
benefit under section 1021.5 “need not represent a ‘tangible’ asset
or a ‘concrete’ gain but, in some cases, may be recognized simply
from the effectuation of a fundamental constitutional or statutory
policy.” (Woodland Hills, supra, 23 Cal.3d at p. 939; see also
Planned Parenthood v. Aakhus (1993) 14 Cal.App.4th 162, 171
[significant benefit “may be conceptual or doctrinal” in nature].)
We are met with one such case. The “benefits of [appellants’]
victory will be shared by” others who can pursue recall petitions
7
without the specter of unjustified official suppression. (County of
San Luis Obispo v. Abalone Alliance (1986) 178 Cal.App.3d 848,
867, fn. 12.) The rights vindicated by appellant’s litigation “inure
to all persons and strengthen our democratic institutions as a
whole.” (Lucky Stores, supra, 34 Cal.3d at p. 324.)
The trial court did not determine whether “‘“the necessity
and financial burden of private enforcement are such as to make
the award appropriate.”’” (Whitley, supra, 50 Cal.4th at p. 1214.)
On remand, the trial court will make that determination in the
first instance, as well as any others that are appropriate. (Cf.
Sandlin, supra, 50 Cal.App.5th at p. 831.)
DISPOSITION
The trial court’s April 4, 2025 fee denial is reversed, and
the matter is remanded for further proceedings consistent with
this opinion. Appellants shall recover their costs on appeal.
NOT TO BE PUBLISHED.
CODY, P. J.
I concur:
YEGAN, J.
8
MCKAIG, J., Dissenting:
I respectfully dissent. The majority holds the trial court
was required to find the litigation conferred a significant benefit
based solely on the importance of the right to file a recall petition
without censorship by the City Clerk. Appellants did not make
this argument to the trial court and even if they had, the record
supports the court’s denial of attorney fees.
In the trial court, appellants made one exceedingly brief
argument in support of their contention that the litigation
conferred a significant benefit on the general public. Specifically,
they argued:
“Petitioners have conferred a significant benefit on
the general public by enabling District 2 voters to
participate in the selection (or, in this case, the
rejection) of their elected representative through the
recall process in the November 2024 election. For all
the reasons described above, promoting the
democratic process confers a substantial benefit on
the public.”
There were no “reasons described above” in this section of
appellants’ brief, but in the preceding section concerning the
enforcement of an important right, appellants argued the
litigation prevented the City Clerk from removing information
from the petition that would have “informed voters about key
issues that were relevant to the recall campaign.”
This was the extent of appellants’ argument concerning the
significant benefit conferred by the litigation. The trial court’s
written ruling addressed the argument appellants made. The
court pointed out that prior to the lawsuit, a recall petition had
been filed and circulated, albeit without the two offending
statements. Appellants did not establish a subsequent recall
petition inclusive of the disputed statements was ever circulated,
and if so, what impact any such petition had on the election. The
court noted appellants failed to establish the disputed statements
were true. Therefore, the court could not determine the
statements were informative or “relevant” to the recall campaign.
As a result, the court found appellants failed to establish the
litigation was necessary or even helpful to District 2 voters’
participation in the recall election. The court’s rejection of
appellants’ argument was not an abuse of discretion.
The majority does not address the argument actually made
to the trial court and instead faults the court for failing to adopt
an argument that appellants never made; namely, that their
lawsuit conferred a significant benefit on the general public
because it permitted all persons to “pursue recall petitions
without the specter of unjustified official suppression.” (Maj. opn.
ante, at p. 7.) The court had no opportunity and was not required
to consider arguments not made to it, nor was it required to
develop or make appellants’ arguments for them. (Calderon v.
Superior Court (2001) 87 Cal.App.4th 933, 940 [“the correctness
of the trial court’s ruling must be judged by the evidence and
argument before it at the time”]; see also Truck Ins. Exchange v.
AMCO Ins. Co. (2020) 56 Cal.App.5th 619, 635 [arguments not
made in the trial court are forfeited on appeal].)
Even if the record could be construed to suggest that
appellants made the argument advanced by the majority, the
trial court would not have abused its discretion in rejecting it.
First, reasonable minds may differ as to whether a
significant benefit was conferred here. This case involved a recall
petition, which is an official election document subject to
government regulation. (San Francisco Forty-Niners v. Nishioka
(1999) 75 Cal.App.4th 637, 648 (Nishioka) [“the law is clear that
elections officials have a ministerial duty to reject petitions” that
suffer from a substantial statutory defect “directly affect[ing] the
2
quality of information provided to the voters”].) Recall petitions
enjoy less protection than speech in traditional public forums,
making this case distinguishable from the weighty free speech
rights at issue in Press v. Lucky Stores, cited by the majority.
(Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 316
[“fundamental rights of free expression and petition guaranteed
by” the Constitution were at issue where case involved signature
gathering at large shopping center].)
This case also involved potentially false and misleading
information in an official election document. False and
misleading information in an official election document does not
promote the democratic process – it undermines it. (Nishioka,
supra, 75 Cal.App.4th at p. 649 [government appropriately
regulates official election documents because “[o]rdinary citizens
with a sense of trust should be able to believe in the accuracy of
what they are signing.”].)
When analyzing whether a significant benefit has been
conferred, a trial court appropriately considers all relevant
circumstances, including whether a benefit has actually been
obtained from a “practical perspective.” (Woodland Hills
Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 938-
939 [court must use discretion to “realistically assess the
litigation and determine, from a practical perspective,” whether
gains obtained conferred significant benefit to general public].)
From a practical perspective, the trial court’s concern about the
potential falsity of the disputed statements (and the resulting
erosion of public confidence in the election process) undercuts the
benefit gained by prohibiting the City Clerk from excluding those
statements from the recall petition. (Compare Willard v. Kelley
(2015) 238 Cal.App.4th 1049, 1057 [resolving dispute over factual
accuracy of statement about candidate’s personal history did not
confer significant benefit]; Mandicino v. Maggard (1989) 210
3
Cal.App.3d 1413, 1419 [“de minimis modifications to opinion
statements in the ballot argument failed to confer a significant
benefit upon . . . voters.”].)
Finally, although the majority states the right established
in the litigation broadly benefited “all persons,” there are no facts
in the record that support this assertion. (Maj. opn. ante, at p. 8.)
Appellants did not identify evidence or authority demonstrating
that the trial court’s ruling had any application beyond this case.
Appellants did not establish the litigation impacted the 2024
election. In terms of the trial court’s directive to the City Clerk,
there was no discussion of whether the Clerk’s refusal to file the
original petition was a one-time event or a chronic issue. There
was no evidence or argument concerning whether the City
changed its practice in response to the litigation or simply abided
by the court order requiring acceptance of the recall petition in
this case. The absence of facts about the scope of the litigation’s
impact stands in sharp contrast to the facts in Lucky Stores. In
that case, the petitioners established the trial court’s ruling
applied broadly to enable signature gatherers to access shopping
centers in many other locations, to enlist volunteers, to educate
others about free speech rights and to obtain financial
contributions. (Press v. Lucky Stores, supra, 34 Cal.3d at p. 321.)
The trial court’s ruling contains a correct statement of the
applicable law. It does not contain an analysis of arguments that
were not presented to it. In this scenario, we are required to
presume the trial court properly applied the law and acted within
its discretion unless appellants affirmatively show otherwise.
(Canyon Crest Conservancy v. County of Los Angeles (2020) 46
Cal.App.5th 398, 409; see also Weissman v. Los Angeles County
Employees Retirement Assn. (1989) 211 Cal.App.3d 40, 46-47
[reversal warranted only if “‘“no reasonable basis for the action is
shown.”’”].) Appellants have not made such a showing.
4
The trial court’s ruling should be affirmed.
NOT TO BE PUBLISHED.
McKAIG, J.*
* Judge of the Superior Court for Ventura, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
5
Craig van Rooyen, Judge
Superior Court County of San Luis Obispo
_________________________________
Hanson Bridgett, Ellis F. Raskin for Plaintiffs and
Appellants.
Lozano Smith, Quentin C. Cedar for Defendants,
Respondents, and Real Party in Interest.