Criterion of An ''Important'' Right Requires Discrimination
The criterion of an "important" right requires discrimination, the strength or importance to society of the right must be apprised and the nature of the right in issue must realistically assessed. (See, e.g., Woodland Hills Residents Assn., Inc. v. City Council, supra, 23 Cal. 3d at p. 935; City of Sacramento v. Drew (1989) 207 Cal. App. 3d 1287, 1304 255 Cal. Rptr. 704).
Here the right in issue, realistically assessed, is the right to public ownership of public property, the easement in issue. That is an important public right.
Code of Civil Procedure section 1021.5 requires that an award be predicated upon "the enforcement of an important right affecting the public interest . . . ." the right in issue can be predicated on common law. (See, e.g., Pearl, Cal. Attorney Fee Awards (2d ed. 1999) 4.19, p. 4-19.
"When other statutory criteria are satisfied, the section explicitly authorizes such award 'in any action which has resulted in the enforcement of an important right affecting the public interest' . . . regardless of its source--constitutional, statutory or other." (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal. 3d 917, 925 154 Cal. Rptr. 503, 593 P.2d 200).
In pertinent part, Code of Civil Procedure section 1021.5 is as follows: "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;
(c) such fees should not in the interest of justice be paid out of the recovery, if any".