Opinion
H050376
09-12-2023
BRUCE HOLLOWAY, Petitioner and Appellant, v. GEORGE WYLIE, Real Party in Interest and Respondent.
NOT TO BE PUBLISHED
(Santa Cruz County Super. Ct. No. 19CV03767)
LIE, J.
As this court explained in a prior opinion arising from the same underlying action (Holloway v. Pellerin (March 4, 2022, H048389) [nonpub. opn.]), Code of Civil Procedure section 1021.5 authorizes a court to award attorney 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 . . . 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." But it "does not authorize a successful plaintiff to recover attorney fees out of the public treasury simply because he or she has acted in the capacity of a private attorney general to enforce an important right affecting the public interest. Rather, a public entity may be held liable for attorney fees only if the agency or its representatives was an 'opposing party' in the litigation." (Nestande v. Watson (2003) 111 Cal.App.4th 232, 240 (Nestande), italics added.)
Undesignated statutory references are to the Code of Civil Procedure.
Having prevailed on an unopposed petition for a peremptory writ of mandate commanding the Santa Cruz County Clerk to delete from a voter information guide the identification of a county supervisor as a proponent of a school district bond measure, appellant Bruce Holloway sought an award of private attorney general fees as to both the respondent county clerk, Gail Pellerin, and real party in interest George Wylie, then president of the San Lorenzo Valley Unified School District's board. Holloway's present appeal concerns the trial court's denial of his motion as to Wylie-who the trial court found had acquiesced to Holloway's requested deletion before and after Holloway filed the petition-on the ground that Wylie was not an "opposing party" under section 1021.5. Because Holloway has not met his burden of establishing a prejudicial abuse of discretion, we affirm.
We take the factual background from our prior opinion in Holloway v. Pellerin, supra, H048389, included in the record on this appeal, Holloway's unopposed petition for writ of mandate, and the declarations submitted by the parties in the fee litigation.
The San Lorenzo Valley Unified School District proposed Measure S, a district bond measure, for consideration by eligible voters in the March 3, 2020 local election. As Elections Code section 9501 permits, the school district filed an argument in favor of Measure S with the Elections Department, subject to the 10-day period of public inspection required by Elections Code section 9509, subdivision (a) before inclusion in the official county voter information guide. Elections Code section 9501.5 conditions inclusion in the voter guide on the argument being "accompanied by the printed name and signature or printed names and signatures of the person or persons submitting it" but limits the number of signatories to five. Wylie signed the argument as president of the school district board, joined by four others, including Bruce McPherson, identified as a Santa Cruz county supervisor.
On December 20, 2019, six days into the public inspection period, Holloway filed a "Petition for Peremptory Writ of Mandate to Delete Ballot Pamphlet Materials Under Elections Code § 9509," naming Pellerin as respondent and Wylie as real party in interest. Neither Pellerin nor Wylie opposed the petition or Holloway's request for ex parte hearing on the petition. A week later, the trial court issued the requested peremptory writ commanding Pellerin to delete McPherson's name from the argument in favor of Measure S.
Holloway thereafter filed a motion for attorney fees in the amount of $10,098 pursuant to section 1021.5, California's private attorney general statute, which authorizes an award of attorney fees to a successful party against one or more opposing parties in an action that has resulted in the enforcement of an important right affecting the public interest. Through his motion, Holloway sought the fees from Pellerin, in her capacity as elections official of Santa Cruz County, and Wylie, as real party in interest. Pellerin opposed the motion, filing a declaration from Tricia Webber, Assistant County Clerk, noting the limited nature of the elections official's role in a legal action to amend or delete any submitted elections materials. Webber further noted as to the merits of Holloway's writ petition that the District and Holloway "resolved the matter before the Writ Hearing."
Holloway argued in the motion that, by assuring an accurate ballot pamphlet, he had conferred a significant non-pecuniary benefit on all voters in the school district, and that private enforcement was necessary, in that before filing the litigation he and his counsel had unsuccessfully attempted to have Pellerin remove McPherson's name from the argument in the ballot pamphlet.
The trial court denied the motion for attorney fees as to both Pellerin and Wylie, finding that (1) the motion was untimely and (2) Pellerin was not an "opposing part[y]" as used in section 1021.5.
On Holloway's appeal from that order, we concluded that although the motion for attorney fees was timely, Pellerin was not an "opposing party" but a ministerial actor required to be named as the respondent under Elections Code section 9509, subdivision (b)(3). We therefore affirmed the trial court's order as to Pellerin. Because untimeliness had been the sole basis for the trial court's denial of the motion as to Wylie, we reversed and remanded for the trial court's determination of the merits of Holloway's claim for fees payable by the school district.
Wylie did not file a brief in the prior appeal. We decided Holloway's prior appeal as to Wylie based on the record and the opening brief. (Cal. Rules of Court, rule 8.220(a)(2).)
On remand, Holloway filed a new motion for attorney fees based on the same arguments he raised in his original motion but seeking fees in the amount of $32,496.75, now including fees incurred in both prosecution of the appeal as to Pellerin and pursuing settlement negotiations with the county. In supporting declarations, Holloway's attorney, Gary Redenbacher, stated that prior to filing the petition he had asked Pellerin to remove McPherson's name from the voter pamphlet argument in favor of Measure S because he was not a voter in the district, rejecting as irrelevant a 1997 opinion by county counsel, which Pellerin interpreted as allowing the inclusion of McPherson's name because he was a county supervisor representing the region that includes the school district. Redenbacher declared that Pellerin "did not tell me that Mr. Wylie or Mr. Schiermeyer had contacted her about removing Mr. McPherson's name. Rather, she informed me that she could not remove the name unless Mr. Wylie agreed to have it removed." This conversation occurred on December 17, 2019, five days into the public inspection period. According to billing statements Redenbacher attached to his declaration and incorporated by reference, he had no contact with Wylie and Wylie's attorney until the day of the hearing on the intervening writ petition; this was 10 days after Pellerin told Redenbacher that removal of McPherson's name depended on Wylie's consent. In that eventual contact, Wylie "gave no indication that Mr. McPherson's name would be removed." Wylie's attorney, however, informed Redenbacher that Wylie did not oppose Holloway's application for ex parte hearing on the petition and that Wylie would not appear at the hearing.
Wylie and Christopher Schiermeyer, the superintendent of the San Lorenzo Valley Unified School District, filed declarations in opposition to Holloway's renewed motion for attorney fees. Both Wylie and Schiermeyer stated in their declarations that the day they learned of Holloway's objection to their identification of McPherson as a proponent of the argument in favor of Measure S, they met with Pellerin and resolved to withdraw McPherson's name.
According to Wylie, Schiermeyer informed him that Holloway had called to object to the inclusion in the voter information guide of McPherson's name as a supporter of Measure S. Wylie and Schiermeyer met the same day with Pellerin; although she told them "that it would be legal and proper for Mr. McPherson's name to be included in the list of authors of the argument[,]" Wylie and Schiermeyer nonetheless decided "to immediately remove McPherson's name" and informed Pellerin that same day of their decision. This was on December 16, two days into the public inspection period and four days before Holloway filed his petition.
According to Schiermeyer, Holloway called him about Measure S on December 16, 2019. When Holloway objected to McPherson's name appearing in the voter information guide as a proponent of the measure, Schiermeyer "told Mr. Holloway that [Schiermeyer] would check with Gail Pellerin of the Santa Cruz County Elections Department and get back to him." Wylie and Schiermeyer met with Pellerin that same day; Pellerin told them that Holloway had contacted her as well and that she had told him McPherson's name did not need to be removed because he was a county supervisor representing the region that includes the school district. Even so, Wylie and Schiermeyer decided to remove McPherson's name and informed Pellerin of this decision. Pellerin accordingly told Wylie and Schiermeyer "that Mr. McPherson's name would not be included" in the voter information guide and that there was no further information or action needed from them. But Pellerin added that she intended to "continue the conversation with Mr. Holloway concerning the legality of including the name and would consult with the county counsel's office." Schiermeyer called Holloway back the same day: "I then called Mr. Holloway back and told him that although Gail Pellerin of the Elections Department indicated we could keep the name, . . . we as the District had decided to remove Mr. Bruce McPherson's name from the Argument in Favor of Measure 'S' prior to it being put into print in the Voters Information Pamphlet. Mr. Holloway thanked me, but also indicated he did not agree with Ms. Pellerin and would be pursuing that conversation and decision directly with the Santa Cruz County Elections Department and Ms. Pellerin."
Nothing in the record indicates any objection to the trial court's reliance on statements imputed to Pellerin. Pellerin herself, given our disposition of the first appeal, made no appearance on remand and nothing in the record suggested that either Holloway or Wylie sought a declaration from her.
Holloway responded to the declarations of Wylie and Schiermeyer in a declaration of his own, in which Holloway described a single contact with Wylie "after [Wylie] receiv[ed] service of the petition." Holloway stated that he told Wylie that he believed Pellerin's opinion that McPherson's name could remain in the voter information guide was inconsistent with state law. Holloway stated that he and Wylie agreed only that Wylie "had followed Pellerin's guid[ance], not that [Wylie] would withdraw Bruce McPherson's name from the ballot argument." Holloway further stated, "[M]y understanding at the time is that the deadline to change the ballot argument had passed and only a judge's order could change it." As for Schiermeyer, Holloway denied ever speaking with him "about this matter."
Following a hearing on the motion for fees, the trial court issued a written order denying Holloway's motion as to Wylie. Adopting in full its previously disclosed written tentative decision, the trial court found all of the declarations from the parties to be credible and specifically noted that "Petitioner has not disputed . . . that [Schiermeyer] told [Holloway] on December 16 or 17, 2019 that the District had agreed to the removal of McPherson's name." The trial court further determined that any conflicts between the declarations "as to whether the action was necessary to enforce a right affecting the public interest [were] likely due to a lack of clear communication between all of the involved parties; some assumptions by Mr. Wylie and Mr. Schiermeyer as to how the removal of Mr. McPherson[']s name, which they assert they had . . . agreed to . . ., would be accomplished; the compressed time before the printing of the Voter Information Pamphlet in which [Holloway] could assure himself that Mr. McPherson's name was removed; and Ms. Pellerin's continuing discussions with [Holloway], in which she expressed her opinion that retaining McPherson's name on the Argument was legal." The trial court further noted the absence of any evidence that "Mr. Wylie or any representative of the District ever indicated that the District opposed the removal of Mr. McPherson's name, stated an opinion as to the legality of retaining McPherson's name on the Argument, or took a position in the litigation that was adverse to Petitioner."
Holloway timely appealed.
II. DISCUSSION
Section 1021.5 "codifies the courts' 'traditional equitable discretion' concerning attorney fees [citation], and within the statutory parameters courts retain considerable discretion. '[T]he Legislature has assigned responsibility for awarding fees under section 1021.5 "not to automatons . . ., but to judges expected and instructed to exercise 'discretion.'"' [Citation.]" (Vasquez v. State of California (2008) 45 Cal.4th 243, 251 (Vasquez).) "The decision as to whether an award of attorney fees is warranted rests initially with the trial court. [Citation.] '[Utilizing] its traditional equitable discretion,' [the trial] court 'must realistically assess the litigation and determine, from a practical perspective' [citation] whether or not the statutory criteria have been met." (Baggett v. Gates (1982) 32 Cal.3d 128, 142.)
The term "opposing party" is not defined in section 1021.5. "Defining 'opposing party' requires consideration of both the origin and the entire procedural history of the subject action between the parties." (McGuigan v. City of San Diego (2010) 183 Cal.App.4th 610, 625 (McGuigan).) Courts "strive to use a practical and pragmatic approach to evaluate the parties' relationships to one another in interpreting the private attorney general fees statute . . . tak[ing] into account the procedural and factual context in which an action arose." (Id. at p. 626.) This is "a practical approach which 'realistically' assesses the litigation." (Id. at p. 625.) "[A] real party in interest in a mandamus proceeding that has a direct interest in the litigation, more than merely an ideological or policy interest, and actively participates in the litigation is an opposing party within the meaning of Code of Civil Procedure section 1021.5 and can be liable for attorney fees under the statute." (Mejia v. City of Los Angeles (2007) 156 Cal.App.4th 151, 161 (Mejia).) A directly interested party that does nothing to remediate the acts giving rise to the litigation may also be an opposing party despite "confess[ing] error in response to litigation." (Animal Protection &Rescue League v. City of San Diego (2015) 237 Cal.App.4th 99 (Animal Protection) [affirming grant of fee award against municipality that conceded-three months after mandate petition-that its planning commission had erred in denying a development permit].)
At issue here is the propriety of the trial court's determination that Wylie and the District, by virtue of their conduct both before and during the litigation, did not sufficiently oppose Holloway's litigation interests to warrant an award of fees. Holloway maintains the trial court erred as a matter of law. In so arguing, he gives short shrift to the fact-intensive nature of the trial court's analysis, its resolution of disputed factual inferences in the District's favor, and the substantial evidence supporting the trial court's inferences. Given our deferential review, we conclude the trial court's factual analysis is fatal to Holloway's claim of reversible error. Even if we assume that Wylie was an "opposing party" and the trial court erred in determining otherwise, Holloway has not established that the trial court erred in deeming him otherwise ineligible for an award of fees.
We invited the parties to submit supplemental briefing addressing "the necessity . . . of private enforcement" and the "significant benefit . . . conferred" thereby. (§ 1021.5, subds. (a) and (b).) Although the statute also calls for consideration of whether "such fees should not in the interest of justice be paid out of the recovery, if any" (§ 1021.5, subd. (c)), where, as here, there has been no monetary recovery, the California Supreme Court has deemed this statutory parameter "inapplicable." (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 318, fn. 5.)
A. Standard of Review
Our resolution of Holloway's claims turns largely on the standard of review and the deference to which the trial court's order is due. On appeal," '[a] judgment or order . . . is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.'" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham).) Even where an appellant affirmatively demonstrates error, the California Constitution forbids reversal unless the appellant further demonstrates that the error resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13.)" 'Moreover, we will affirm a judgment correct on any legal basis, even if that basis was not invoked by the trial court. [Citation.] There can be no prejudicial error from erroneous logic or reasoning if the decision itself is correct.' [Citation.]" (Wolstoncroft v. County of Yolo (2021) 68 Cal.App.5th 327, 347 (Wolstoncroft).)
We generally review for abuse of discretion a trial court's denial of a motion for attorney fees. (Vasquez, supra, 45 Cal.4th at p. 251; Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1213 (Whitley).) Although deferential, "[t]he abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court's ruling under review. The trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious." (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712 (Haraguchi), fns. omitted.)
De novo review of an order granting or denying fees would accordingly be warranted" 'where the determination of whether the criteria for an award of attorney fees and costs in this context have been satisfied amounts to statutory construction and a question of law.'" (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175 (Connerly) [holding that real party in interest California Business Council-despite its active role in opposing the prevailing party's mandate petition, lacked the requisite direct interest in the disputed affirmative action policies to be an opposing party].) This was the case, for example, in our review of the trial court's order, on undisputed facts, of whether Pellerin-as the county elections official required under Elections Code section 9509 to be named as the respondent-was an "opposing party" under section 1021.5. (Holloway v. Pellerin, supra, H048389.) As with the California Business Council in Connerly, the particulars of Pellerin's views of the merits or her status as a party to the litigation were immaterial; the nonexistence of any direct interest in the subject of the litigation was dispositive. (See Connerly, supra, 37 Cal.4th at p. 1175.) But "[u]nder some circumstances, [opposing-party status] may be a mixed question of law and fact and, if factual questions predominate, may warrant a deferential standard of review." (Ibid.)
Here, as the proliferation of apparently conflicting declarations suggests, the trial court's assessment of opposing-party status was a fact-intensive inquiry, and not one that turned predominantly on an issue of statutory interpretation. As the content of those declarations indicates, the core factual dispute was the nature and communication of the District's efforts to make litigation unnecessary by acceding to Holloway's demand that McPherson be excluded from among the proponents of the bond measure to be identified in the voter information guide. Although Holloway contends that the material facts are undisputed and that our review of the trial court's "opposing party" determination is accordingly de novo, he himself disputes on appeal that Schiermeyer told him the District had agreed to the removal of McPherson's name, and, as we will discuss, Holloway invites us to reject the trial court's reading of his own declaration. Redenbacher in his declaration further appears to dispute whether the District officials conveyed even to Pellerin their assent to the withdrawal of McPherson's name. Accordingly, Holloway's reliance on Mejia, supra, 156 Cal.App.4th at page 159 to support de novo review is misplaced, because there, "[t]he material facts concerning [the real party in interest's] participation in the litigation [were] undisputed." (Ibid., italics added.) The predominance of disputed factual questions here warrants deferential review (see Connerly, supra, 37 Cal.4th at p. 1175), and we will uphold the trial court's resolution of the statutory requirements absent an abuse of discretion. (Vasquez, supra, 45 Cal.4th at p. 251.)
Redenbacher made a point of noting "I have known Ms. Pellerin personally for many years" before declaring she told him nothing of any discussion with Wylie and Schiermeyer. Neither party produced a declaration by Pellerin to rebut or confirm Schiermeyer's and Wylie's declarations. Nor does it appear from the record that either party objected to the trial court's consideration of statements various declarants attributed to Pellerin.
B. The Trial Court's Conclusions of Law
In reviewing the trial court's order for abuse of discretion, we nonetheless exercise our independent judgment as to its conclusions of law. (Haraguchi, supra, 43 Cal.4th at p. 711.) But we discern no error in the trial court's acknowledgment of the statutory criteria for an award of fees, which it recited verbatim in its written order, or in its express reliance on Nestande, supra, 111 Cal.App.4th 232, 240 in evaluating the extent to which Wylie and the District adopted a position in the litigation that was adverse to Holloway's.
For the proposition that the trial court erred as a matter of law, Holloway relies on Connerly to claim "[o]ur Supreme Court has specifically held that the author of . . . the offending ballot argument, is 'largely responsible for causing the conditions that gave rise to the litigation' and, therefore, an opposing party." Not so. To begin, Holloway mischaracterizes the facts of Connerly, which involved not a ballot argument or voter information guide but the validity under the state constitution of statutory affirmative action programs. (Connerly, supra, 37 Cal.4th at p. 1172.) He also mischaracterizes its holding, by confusing necessity and sufficiency: Connerly held that amicus curiae/nominal real party in interest California Business Council was not an "opposing party" under section 1021.5, because the Council lacked the necessary direct interest in the subject matter of the litigation, in spite of its active and ultimately unsuccessful defense of state affirmative action policies. Precisely because the nature and extent of the Council's opposition was undisputed and indeed indisputable, Connerly accordingly did not address whether an acquiescent party's direct interest in the subject matter of the litigation-absent opposition-was sufficient to make the party an "opposing" one.
Initially appearing as amicus curiae, the California Business Council opposed then-Governor Pete Wilson's petition for writ of mandate challenging the affirmative action programs of six state agencies. When the Council argued that the petition failed to present a justiciable controversy-given what was then a dispute solely between the governor and executive branch agencies-the governor amended the petition to name the Council and other amici as real parties in interest. Ward Connerly was later permitted to join as a plaintiff and continued the litigation after the conclusion of Wilson's term of office. (Connerly, supra, 37 Cal.4th at p. 1173.)
To be sure, the high court observed from its survey of three cases addressing the catalyst theory of recovery that "[g]enerally speaking, the opposing party liable for attorney fees under section 1021.5 has been the defendant person or agency sued, which is responsible for initiating and maintaining actions or policies that are deemed harmful to the public interest and that gave rise to the litigation." (Connerly, supra, 37 Cal.4th at pp. 1176-1177, italics added.) The high court further observed that "those found liable for section 1021.5 fees were either real parties in interest that had a direct interest in the litigation, the furtherance of which was generally at least partly responsible for the policy or practice that gave rise to the litigation, or were codefendants with a direct interest intertwined with that of the principal defendant." (Connerly, supra, 37 Cal.4th at p. 1181; see id. at p. 1177.) Accordingly, notwithstanding the California Business Council's active adversarial role in unsuccessfully defending the affirmative action programs, the high court reversed the judgment of the Court of Appeal, which had affirmed the trial court's award of fees: "Although some of the courts, above, stressed active participation in the litigation as grounds for awarding attorney fees, no court has held that active participation alone, without a direct interest in litigation, can be grounds for awarding section 1021.5 fees." (Id. at p. 1181.) Connerly therefore stands for the proposition that a direct interest in the litigation is necessary to opposing party status under section 1021.5, not that it is sufficient as a matter of law. We accordingly do not construe Connerly as compelling a different result here.
Nor is our prior resolution of Holloway's appeal as to Pellerin controlling. Our decision did not turn on the nature and extent of Pellerin's resistance to removing McPherson's name, but on Pellerin's lack of the necessary "direct interest in the district bond measure or whether McPherson's name appeared in the voter information pamphlet as one of its proponents," the statutory mandate (Elec. Code, § 9509) that she be named as respondent on any petition seeking correction of ballot materials, and her ministerial role. (Holloway v. Pellerin, supra, H048389.) As president of the school district board responsible for the error Holloway sought to correct, Wylie-in distinct contrast to Pellerin or the amicus California Business Council in Connerly-had a "direct interest" in the bond measure and the supporting arguments in the voter information guide. But as we will next discuss, the trial court's factual findings and reconciliation of the competing declarations require us to conclude Wylie relinquished that interest.
C. Application of Law to Facts
We defer to the trial court's findings, express or implied, where supported by substantial evidence, even on written declarations without live testimony. (Consolidated Irrigation Dist. v. Superior Court (2012) 205 Cal.App.4th 697, 710; Shamblin v. Brattain (1988) 44 Cal.3d 474, 479 (Shamblin).) "When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." (Shamblin, supra, 44 Cal.3d at pp. 478-479.) This is so even where "[t]he facts are largely undisputed." (Id. at p. 476.) Here, the trial court implicitly determined that Wylie and Schiermeyer communicated to Pellerin their consent to the removal of McPherson's name, and that Schiermeyer in turn told Holloway of the same. As the declarations of Wylie and Schiermeyer appeared to conflict with Holloway's, the trial court resolved that conflict against Holloway, finding that although all of the parties were credible, Holloway "has not disputed Mr. Schiermeyer's statement that he told [Holloway] on December 16 or 17, 2019 that the District had agreed to the removal of McPherson's name." Disputing that finding now, Holloway cites Redenbacher's declaration and notes Redenbacher's "extensive exhortation showing that [Schiermeyer's] allegation was heavily at odds with established facts." But it was for the trial court-not the litigants, their counsel, or a reviewing court-to weigh the evidence and decide "established facts."
Having credited Schiermeyer's declaration, the trial court could reasonably find that it was not Redenbacher to whom Schiermeyer had communicated the District's consent to the removal of McPherson's name, but Holloway himself. Holloway, for his part, denied communicating with Schiermeyer "about this matter," but it was not unreasonable for the trial court to infer from the context of his declaration that "this matter" referred to his writ petition (given the clear meaning of "this matter" as used elsewhere in the declaration) and not to the broader issue of the school district's inclusion (or pre-petition withdrawal) of McPherson's name from the argument in the voter information guide. (See, e.g., Shamblin, supra, 44 Cal.3d at pp. 478-479 [deferring to trial court's election from among reasonable inferences suggested by facts].) The bulk of Holloway's declaration addresses only post-petition communications with Wylie. Holloway and his counsel were also on notice of the trial court's interpretation of Holloway's declaration from the pre-hearing disclosure of the written tentative ruling; because Holloway has not sought a settled statement of the oral proceedings, we presume that those oral proceedings supported the trial court's resolution of this issue. And as the trial court noted, taking the declarations of Holloway and Redenbacher at face value, neither suggests that Holloway-either personally or through counsel-made any effort to explore the possibility of the school district's voluntary removal of McPherson's name, in lieu of disputing with Pellerin the scope of her authority to remove it unilaterally on Holloway's demand.
Unlike Pellerin and the amicus in Connerly, the trial court found that Wylie and the District not only did nothing to oppose Holloway's petition for mandamus relief but had expressly consented-prior to Holloway's filing his petition-to the correction of the voter information guide. The trial court's determination both that the district had decided to remove McPherson's name from the voter information guide and that it had communicated that decision to both Pellerin and Holloway before Holloway filed suit is supported by substantial evidence-the declarations of Wylie and Schiermeyer. Those determinations are sufficient to support the trial court's denial of Holloway's motion for private attorney general fees against Wylie, even if on other grounds than those expressly identified by the trial court in its ruling, and it is Holloway's burden on appeal to demonstrate otherwise. (Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329-330 [appealed order correct on any ground or theory will be affirmed regardless of whether trial court was moved to its conclusions by other considerations]; Mike Davidoff Co. v. Issod (2000) 78 Cal.App.4th 597, 610 [no prejudicial error from erroneous logic or reasoning if decision itself is correct].)
Holloway takes issue with the trial court having noted that in our opinion affirming the denial as to Pellerin, we concluded that Pellerin was not an "opposing party" despite the persistence of her position that retaining McPherson's name in the voter information guide was lawful. The court contrasted these aspects of Pellerin's conduct with Wylie's. Based on these facts, the court ultimately concluded that if Pellerin was not an "opposing party" subject to an award of fees, "[t]he evidence before the Court as to Mr. Wylie and the [school] [d]istrict on this issue is even more compelling." The court accordingly determined that Wylie also was not an "opposing party" such that Holloway could be entitled to private attorney general fees against him. We reject Holloway's contention that the trial court erred in considering Pellerin's involvement in the controversy in assessing the District's, given the trial court's determination of the relevant circumstances.
In crediting Schiermeyer's declarations, the trial court necessarily accepted his account of Pellerin's express assurance that McPherson's name would be removed without any further action by the District. As to the trial court's finding that the District's reliance on Pellerin's assurances involved "some assumptions," the trial court did not specify what assumptions those might have been. Indulging all intendments and presumptions in favor of the judgment (see Denham, supra, 2 Cal.3d at p. 564), we understand the trial court to have determined that the District's reliance on Pellerin's express assurance was not unreasonable.
Our construction is reinforced by the trial court's attributing the "lack of clear communication" in part to Pellerin's continuing to engage with Holloway as to the lawfulness of McPherson's inclusion in the voter information guide-even after Wylie and Schiermeyer told her the District was conceding the issue. In such circumstances, we are unable to conclude the trial court's comparative assessment of Wylie and Pellerin exceeded the bounds of reason. The trial court's factual findings suggest that Wylie in these circumstances did not "possess[] . . . the exclusive power, to abandon or change" (Connerly, supra, 37 Cal.4th at p. 1183) the offending list of Measure S proponents that Pellerin and Holloway continued to spar over even after both were personally on notice that the District was acceding to Holloway's demand.
Against the trial court's assessment, Holloway relies on Animal Protection, supra, 237 Cal.App.4th 99), which deemed the defendant city an opposing party despite its having" 'confessed error'" in its answer three months after the filing of the petition. (Id. at p. 104.) Analogizing the catalyst theory of recovery, under which attorney fees may be proper" 'if the defendant changes its behavior substantially because of . . . the litigation,'" the Animal Protection court emphasized that the city confessed error only "in response to litigation." (Id. at p. 108.) Here, however, the trial court-by crediting the declarations and construing Holloway's as failing to rebut Schiermeyer's-implicitly found that it was not litigation that catalyzed the District's acquiescence, but Holloway's phone call to Schiermeyer days earlier. We do not suggest that remedial measures prior to the commencement of litigation categorically immunize a real party in interest from liability for an award of fees. But we conclude that a trial court does not abuse its discretion in considering such measures in determining whether such a party, given the specific factual circumstances, is an "opposing" one under section 1021.5.
D. Further Statutory Requirements
Even assuming the District's interest in the ballot materials in support of Measure S and Wylie's initial error in including McPherson's name were sufficient to render Wylie an opposing party-despite what the trial court credited as Wylie's early attempt to forestall litigation-we must affirm the denial of fees if the trial court's determination that Holloway failed to satisfy the statutory criteria was otherwise" 'correct on any legal basis, even if that basis was not invoked by the trial court.' " (Wolstoncroft, supra, 68 Cal.App.5th at p. 347; see also Wal-Mart Real Estate Business Trust v. City Council of San Marcos (2005) 132 Cal.App.4th 614, 625 [affirming the denial of section 1021.5 fees on a different ground than identified by the trial court].)
In a supplemental brief, Holloway concedes that he must demonstrate not only error but a reasonable probability of a more favorable result absent the error. (People v. Watson (1956) 46 Cal.2d 818.) He asserts that remand is required for the trial court to determine in the first instance whether the other requirements for an award of attorney fees under section 1021.5 have been met. He contends that "no reasonable person . . . could rationally conclude that the state does not have a strong interest in the accuracy of ballot pamphlets or that the entire San Lorenzo Valley School District does not constitute 'a large class of persons.' The benefit of an accurate ballot pamphlet would not have happened but for Mr. Holloway's private efforts." For reasons we discuss, we disagree that remand is required here.
1. Forfeiture
As an initial matter, we decline Holloway's invitation to treat as forfeited what he terms the "defenses" Wylie argues in his respondent's brief on appeal. It is of course well settled that an appellant's failure to raise or adequately brief an issue in the superior court generally results in forfeiture of that issue. (Findleton v. Coyote Valley Band of Pomo Indians (2018) 27 Cal.App.5th 565, 569 (Findleton); Mendoza v. Trans Valley Transport (2022) 75 Cal.App.5th 748, 779 (Mendoza).) But what Holloway overlooks in castigating Wylie for "an elementary violation of appellate law" is that because this is Holloway's appeal from the trial court's denial of fees, it is therefore Holloway's burden to affirmatively demonstrate a manifest abuse of discretion and to overcome the presumption of correctness attendant upon the trial court's order.
Moreover, even assuming that a respondent's arguments in support of a presumptively correct order could be deemed forfeited in the same fashion as an appellant's arguments against it, it is an equally elementary principle of appellate review that the appellant has the burden of procuring an adequate record. (Jameson v. Desta (2018) 5 Cal.5th 594, 609.) Holloway has not supplied a sufficient record from which we could properly assess his claim of forfeiture: he relies on only the declarations of Wylie and Schiermeyer but has not provided any transcript or settled statement as a record of the oral proceedings at the hearing on Holloway's motion to demonstrate that Wylie failed to raise any arguments therein."' "[I]f any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented." '" (Ibid.) As a matter of record, then, we have no basis to accept even the factual scenario on which Holloway bases his forfeiture argument.
2. The Necessity of Private Enforcement
Turning to the trial court's treatment of "whether the action was necessary to enforce a right affecting the public interest," (see § 1021.5, subd. (b)), we are unable to conclude that Holloway has met his burden of demonstrating that the trial court's decision was not otherwise correct.
Although the trial court concluded its order by stating as the basis for its denial of fees "that Wylie and the District were not 'opposing parties[,]'" the court was plainly aware of the additional statutory requirements, which it appropriately recited. Moreover, in addressing the factual disputes between the parties' declarations, the court specifically noted that the conflicts related "to whether the action was necessary to enforce a right affecting the public interest ...." It then resolved the conflicts, and we"' "defer to its findings of historical fact, whether express or implied, if they are supported by substantial evidence." [Citation.]'" (Jie v. Liang Tai Knitwear Co. (2001) 89 Cal.App.4th 654, 666; see also Estate of Larson (1980) 106 Cal.App.3d 560, 567 [the substantial evidence rule operates "where it can be presumed that the court has performed its function of weighing the evidence"].)
Given the mandate to" 'realistically' assess[] the litigation" in light of the statutory requirements, the trial court's determination whether to award fees under section 1021.5 "require[d] consideration of both the origin and the entire procedural history of the subject action between the parties[.]" (McGuigan, supra, 183 Cal.App.4th at p. 625.) Although section 1021.5 does not condition an award of fees upon any "categorical requirement" that the party seeking fees have attempted to resolve the dispute before resorting to litigation, a trial court may nonetheless consider the nature of those efforts in its determination "whether 'the necessity and financial burden of private enforcement . . . are such as to make the award appropriate.'" (Vasquez, supra, 45 Cal.4th at p. 251.) "[T]he necessity and financial burden requirement' "really examines two issues: whether private enforcement was necessary and whether the financial burden of private enforcement warrants subsidizing the successful party's attorneys."' [Citation.]" (Whitley, supra, 50 Cal.4th at p. 1214.) "The 'necessity' of private enforcement '"' "looks to the adequacy of public enforcement and seeks economic equalization of representation in cases where private enforcement is necessary." '" '" (Id. at p. 1215.)
Here, the trial court determined that the school district, by way of Wylie and Schiermeyer, attempted in good faith to prevent the inclusion of McPherson's name in the voter information guide from "giving rise to litigation" by promptly consenting to the requested change and immediately communicating that consent to Pellerin and Holloway, prior to the commencement of litigation. Construing the order in the light most favorable to the judgment, as we must, we note that the trial court appears to have concluded that Pellerin's "continuing discussions with Petitioner, in which she expressed her opinion that retaining McPherson's name on the Argument was legal," had the effect of overshadowing the early concession by Wylie and the District.
As we have observed, the court explicitly linked its resolution of these conflicts in the evidence to "whether the action was necessary to enforce a right affecting the public interest." In the trial court's determination, "a lack of clear communication"-including "Pellerin's continuing discussions with [Holloway], in which she expressed her opinion that retaining McPherson's name on the Argument was legal"-and not any actual opposition by Wylie fueled the litigation. In other words, clearer communication among the parties would have obviated the need for litigation, which goes directly to and negates the element of whether the litigation was necessary to enforce a right affecting the public interest.
Holloway asserts that private enforcement was necessary because the County Clerk had no duty to correct the error in the ballot pamphlet. That Pellerin had no authority to unilaterally remove McPherson's name from the voter information guide does not, however, signify that Holloway was free to disregard-at the District's cost- Schiermeyer's assurance that the District was acceding to his demand. Although Holloway stated in his own declaration that, irrespective of the school district's position, he understood that he needed a court order to secure the removal of McPherson's name, he has not demonstrated that his understanding was correct. Contrary to Holloway's declaration, Redenbacher stated in his own declaration that Pellerin had told him that removal of the name short of litigation depended on Wylie's consent. More importantly, nothing in the record indicates Holloway adequately briefed for the trial court whether Wylie's consent would have been insufficient as a matter of law to effect the correction short of a court order. (See, e.g., Findleton, supra, 27 Cal.App.5th at p. 569; Mendoza, supra, 75 Cal.App.5th at p. 779.)
We observe that with respect to some local elections, the Legislature has expressly provided that arguments made in election materials "may be changed or withdrawn by their proponents" up to a date fixed by the elections official. (Elec. Code, §§ 9286, subd. (a) [applying to arguments concerning city measures]; 9316 [applying to arguments concerning district initiatives].) Although we find no analogous provision in the Elections Code chapter pertaining to the content of arguments for or against measures submitted to the voters in school district elections, the inclusion or exclusion of McPherson's name did not alter the content of the argument. We further note that the deletion of McPherson's name would not have been material to the school district's compliance with Elections Code section 9501.5's requirement that a ballot argument be accompanied by "the name of the organization [submitting the argument] and the printed name and signature of at least one of its principal officers."
On this record, and treating Wylie as an opposing party, the trial court's apparent assessment of the necessity of private enforcement was an adequate and independent basis for denial of the fee award Holloway sought.
We therefore have no basis to conclude that the trial court erred in determining that Holloway was not entitled to an award of fees under section 1021.5, let alone any error resulting in a miscarriage of justice.
III. DISPOSITION
The order is affirmed. In the interests of justice, the parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
I CONCUR: WILSON, J
BAMATTRE-MANOUKIAN, ACTING P.J., Dissenting.
Bruce Holloway sought to have the name of a county supervisor, Bruce McPherson, deleted as a proponent of a school bond measure in a ballot pamphlet. After prelitigation efforts proved unsuccessful in removal of the name, Holloway filed a petition for a peremptory writ of mandate seeking to have the county clerk, Gail Pellerin, in her capacity as the county elections official, delete the name from the ballot pamphlet. The petition also named George Wylie, who signed the argument in the ballot pamphlet in his capacity as president of the school district's board, as the real party in interest. Neither Pellerin nor Wylie filed opposition to the petition. After a hearing, the trial court granted the petition and issued the requested peremptory writ commanding Pellerin to delete the name from the argument in favor of the school bond measure.
Holloway thereafter filed a motion for attorneys' fees against Pellerin and Wylie pursuant to Code of Civil Procedure section 1021.5. Pellerin filed opposition, but Wylie did not. The trial court denied the motion on the ground that it was untimely and further found that Pellerin was not an "opposing part[y]" under section 1021.5. Upon Holloway's appeal, a different panel of this court affirmed the order that Pellerin was not an opposing party, after determining that she was "an elections official whose actions were not the cause of litigation." (Holloway v. Pellerin (Mar. 4, 2022, H048389) [nonpub. opn.]) As to Wylie, this court determined that the attorneys' fees motion was timely and, because timeliness was the sole basis for the trial court's denial of the motion as to him, this court remanded the matter for further proceedings on the attorneys' fees motion against Wylie.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
Wylie did not file a respondent's brief in the prior appeal.
On remand, Holloway filed a new motion for attorneys' fees. Wylie and Christopher Schiermeyer, the superintendent of the school district, filed declarations in opposition to the motion. The trial court issued a written order denying the motion solely "on the basis that Wylie and the District were not 'opposing parties.' "
Holloway has again appealed. The majority now concludes that Wylie, like Pellerin, is not an opposing party under section 1021.5. The majority also reaches the issue of whether Holloway has satisfied the other statutory criteria for an award of attorneys' fees under section 1021.5.
I would conclude based on my review of the record that Wylie is an opposing party and, since the trial court denied the attorneys' fees motion solely "on the basis that Wylie and the District were not 'opposing parties,'" I would remand the matter back to the trial court to determine in the first instance whether the other statutory criteria under section 1021.5 have been met.
Section 1021.5 states that "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 . . . 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."
First, I would conclude that Wylie is an "opposing part[y]" within the meaning of section 1021.5. The California Supreme Court has explained that "the edition of Black's Law Dictionary current at the time that section 1021.5 was drafted states that' "[p]arty" is a technical term having a precise meaning in legal parlance; it refers to "those by or against whom a suit is brought . . ., the party plaintiff or defendant ...."' [Citations.] [¶] Generally speaking, the opposing party liable for attorney fees under section 1021.5 has been the defendant person or agency sued, which is responsible for initiating and maintaining actions or policies that are deemed harmful to the public interest and that gave rise to the litigation. [Citations.]" (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1176-1177 (Connerly).) Further, as a general proposition, "real parties in interest can be held liable for attorney fees." (Id. at p. 1178.) In Connerly, the California Supreme Court discussed several cases and explained that "in all of the above cases, those found liable for section 1021.5 fees were either real parties in interest that had a direct interest in the litigation, the furtherance of which was generally at least partly responsible for the policy or practice that gave rise to the litigation, or were codefendants with a direct interest intertwined with that of the principal defendant." (Id. at p. 1181.)
One appellate court has stated the following general principles regarding the requirements of section 1021.5: "Defining 'opposing party' requires consideration of both the origin and the entire procedural history of the subject action between the parties, since we are instructed to utilize a practical approach which 'realistically' assesses the litigation, to determine if all the statutory criteria have been met. [Citation.] We utilize 'a "broad, pragmatic view of what constitutes a 'successful party'" in order to effectuate the policy underlying section 1021.5.' [Citation.] It is the 'impact' of the case as a whole that we must consider. [Citation.] This must include a recognition of the roles of all the different participants or parties, as of all the relevant time periods ...." (McGuigan v. City of San Diego (2010) 183 Cal.App.4th 610, 625, italics omitted (McGuigan).) The appellate court further observed that "the role of the opposing party, against whom fees may be awarded" under section 1021.5, has been interpreted" 'to mean a party whose position in the litigation was adverse to that of the prevailing party. Simply put, an "opposing party" within the meaning of section 1021.5 is a losing party.' [Citation.]" (McGuigan, supra, at p. 626, italics omitted; accord, Nestande v. Watson (2003) 111 Cal.App.4th 232, 240-241.)
In this case, as explained in the majority opinion, the school district proposed Measure S and filed an argument in favor of the measure, and Wylie signed the argument as president of the school district board. Notwithstanding communications amongst the parties regarding removal of the county supervisor's name from the ballot pamphlet, the name was not removed until Holloway successfully petitioned the trial court to issue a peremptory writ of mandate commanding Pellerin, the county clerk, to delete the name.
I believe Wylie is an opposing party within the meaning of section 1021.5 because he is a "real part[y] in interest [who] had a direct interest in the litigation, the furtherance of which was generally at least partly responsible for the policy or practice that gave rise to the litigation ...." (Connerly, supra, 37 Cal.4th at p. 1181.) Indeed, Wylie was a party"' "against whom a suit [was] brought" '" (id., at p. 1176) and, given that Holloway successfully petitioned the trial court, Wylie as the real party in interest was, simply put," 'a losing party'" (McGuigan, supra, 183 Cal.App.4th at p. 626, italics omitted). Moreover, in view of the disposition of Holloway's prior appeal by a different panel of this court, which concluded that Pellerin was not an opposing party, in the current appeal the majority's conclusion that Wylie is also not an opposing party results in a situation where there is no opposing party.
In this court, Wylie emphasizes that he was not an opposing party within the meaning of section 1021.5 because he was "indifferent to Holloway's cause," "did not care" about the outcome of Holloway's petition, and offered "nil" as far as "resistance" to the petition. However, Wylie's indifference, absence of care, and lack of resistance to Holloway's petition does not preclude him from being an opposing party under section 1021.5. (See Animal Protection &Rescue League v. City of San Diego (2015) 237 Cal.App.4th 99, 107 ["it is generally the entity responsible for the actions 'that gave rise to the litigation' that is an opposing party under section 1021.5"].)
I observe that the trial court in its order also referred to facts indicating that prior to the filing of Holloway's petition, Wylie no longer wished to keep the county supervisor's name on the argument in favor of the measure. The trial court on this point found, among other things, that "all of [the] declarants [were] credible," there was "a lack of clear communication between all of the involved parties," "some assumptions by Mr. Wylie and [school district official Christopher] Schiermeyer as to how the removal of Mr. McPherson's name . . . would be accomplished," and "the compressed time before the printing of the Voter Information Pamphlet in which [Holloway] could assure himself that Mr. McPherson's name was removed," which ultimately resulted in Holloway filing the petition in the trial court. Under these circumstances, I believe that Wylie still qualifies as an opposing party under section 1021.5 in view of Connerly, supra, 37 Cal.4th 1169 and the other cases I have already discussed above. To the extent that there is an issue regarding whether Holloway could have resolved the matter informally with Wylie before resorting to litigation, the trial court should be allowed on remand to consider that issue, along with all other relevant circumstances, in determining whether, in "the court's equitable discretion," attorneys' fees should be awarded under section 1021.5. (Vasquez v. State of California (2008) 45 Cal.4th 243, 247 (Vasquez); see id. at pp. 247-248 [holding that, in determining whether" 'the necessity and financial burden of private enforcement . . . are such as to make the award appropriate'" under § 1021.5, a trial court "properly considers all circumstances bearing on the question whether private enforcement was necessary, including whether the party seeking fees attempted to resolve the matter before resorting to litigation" (italics omitted)].) I observe that to the extent that Wylie argues that Holloway previously claimed that Pellerin, not Wylie, created the need for litigation over the ballot pamphlet, Wylie fails to persuasively demonstrate in this court that judicial estoppel now prevents Holloway from arguing that Wylie "was the adverse party to [Holloway's] underlying litigation."
Second, having concluded that Wylie is an opposing party within the meaning of section 1021.5, I would remand the matter for further proceedings on the attorneys' fees motion against him. Section 1021.5 permits an award of 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 . . . 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 this case, the only factor addressed by the trial court in its written order denying attorneys' fees was whether Wylie was an opposing party. Indeed, the trial court expressly stated, "The motion is therefore denied on the basis that Wylie and the District were not 'opposing parties.'" As the majority recognizes, whether fees should be awarded under section 1021.5 is a discretionary decision that "rests initially with the trial court." (Baggett v. Gates (1982) 32 Cal.3d 128, 142 (Baggett); accord, Vasquez, supra, 45 Cal.4th at p. 251 [explaining that "within the statutory parameters [of § 1021.5] courts retain considerable discretion"]; see also ibid. [an appellate court" 'will uphold the trial court's decision to award attorney fees under section 1021.5, unless the court has abused its discretion' "].)
Despite the fact that the trial court only reached the issue of whether Wylie was an opposing party, the majority appears to imply findings by the trial court regarding the other statutory criteria in section 1021.5. However, "[w]here a written order clearly expresses the legal and factual basis for the trial court's resolution of controverted issues, an appellate court will not imply findings the trial court did not make. [Citations.]" (L.Q. v. California Hospital Medical Center (2021) 69 Cal.App.5th 1026, 1049 (L.Q.).) Here, it is clear that, aside from deciding whether Wylie was an opposing party, the trial court did not make any findings regarding whether the other statutory criteria for attorneys' fees under section 1021.5 had been met and whether, in the exercise of the trial court's discretion, attorneys' fees should be awarded. Because the trial court "clearly set out why [it] denied [the motion]," we may "not presume that [the court] denied it for other reasons." (L.Q., supra, at p. 1049; accord, Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1384 [if "the record clearly demonstrates what the trial court did, we will not presume it did something different"]; see also Kemp Bros. Construction, Inc. v. Titan Electric Corp. (2007) 146 Cal.App.4th 1474, 1477-1478 (Kemp Bros. Construction).)
It appears that the majority seeks to imply findings by the trial court as part of the majority's assessment as to whether any error by the trial court was prejudicial. (See, e.g., Robert v. Stanford University (2014) 224 Cal.App.4th 67, 72 [an appellate court is "bound by article VI, section 13 [of the California Constitution] and Code of Civil Procedure section 475, and we may not reverse a judgment in the absence of a showing of prejudice"]; Kemp Bros. Construction, supra, 146 Cal.App.4th at p. 1477 ["Ordinarily, when the court gives an incorrect legal reason for its ruling, we look for any other correct legal basis on which to sustain the order"].) However, a harmless error analysis may not be appropriate in some circumstances, such as "where the record reflects the trial court's threshold erroneous ruling [led] to a refusal to consider any evidence on the dispositive factual question." (Folsom Police Dept. v. M.C. (2021) 69 Cal.App.5th 1052, 1062, italics omitted; see also In re Valerie A. (2006) 139 Cal.App.4th 1519, 1521 ["Since the court excluded all evidence and refused to consider the issue, we cannot apply a harmless error analysis to this case."].)
In this case, to the extent this court determines that the trial court's sole finding- that Wylie was not an opposing party under section 1021.5-is erroneous, I believe the matter should be remanded to the trial court so that the trial court may exercise its discretion in the first instance regarding whether the other factors under section 1021.5 have been met and whether Holloway is entitled to recover attorneys' fees. (See People v. Knoller (2007) 41 Cal.4th 139, 158 [where trial court abused its discretion, and "[i]t is uncertain whether the trial court would have reached the same result using correct legal standards," matter remanded to trial court]; F.T. v. L.J. (2011) 194 Cal.App.4th 1, 26 ["[a] discretionary order based on the application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion and is subject to reversal even though there may be substantial evidence to support that order"; "[i]f the record affirmatively shows the trial court misunderstood the proper scope of its discretion, remand to the trial court is required to permit that court to exercise informed discretion with awareness of the full scope of its discretion and applicable law" (italics omitted)].)
In conclusion, I determine that Wylie is an opposing party within the meaning of section 1021.5, and I would remand the matter to the trial court to decide in the first instance whether the other statutory criteria for an award of attorneys' fees under section 1021.5 have been met, including ultimately, whether in the exercise of the trial court's discretion, attorneys' fees should be awarded to Holloway. (See Baggett, supra, 32 Cal.3d at p. 142 [whether attorneys' fees should be awarded under § 1021.5 is a discretionary decision that "rests initially with the trial court"]; Vasquez, supra, 45 Cal.4th at p. 251 ["within the statutory parameters [of § 1021.5] courts retain considerable discretion"].)