Attorney's Fees Implied Dedication Theory
Attorney's fees awards should not be available where closure of public access to a trail is enjoined on a legal theory of implied dedication.
The negative implication, that the Legislature decided that attorney's fees should never be available where public access to a trail is successfully predicated on a theory of implied dedication, is unwarranted.
A lawmaker could distinguish between actions predicated on the two theories for reasons which do not support the implication.
An action founded on an express dedication theory would be, generally speaking, highly likely to succeed. Hence, the plaintiff acting on behalf of the public would be highly likely to succeed and also be undeterred by the prospect of an adverse attorney's fees award.
However, implied dedication is inherently more chancy, and the prospect of an adverse award could deter potential plaintiffs.
Accordingly, the lawgiver could decide that in cases predicated on implied dedication the plaintiffs should not be burdened with that prospect, but be induced by the prospect of a potential award under Code of Civil Procedure section 1021.5, if they met the criteria for such a selective attorney's fees award.