Filed 3/9/15 Carian v. Cal. Dept. of Fish and Wildlife CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

BLAINE CARIAN,

Plaintiff and Appellant,

v.

CALIFORNIA DEPARTMENT OF FISH 

AND WILDLIFE et al.,

Defendants and Respondents.

 D066683

 (Super. Ct. No. INC1203600)

APPEAL from an order of the Superior Court of Riverside County, Harold W. 

Hopp, Judge. Affirmed.

Redwine and Sherrill, and M. Eli Underwood for Plaintiff and Appellant.

Kamala D. Harris, Attorney General, Robert W. Byrne, Assistant Attorney 

General, Eric M. Katz, Ross H. Hirsch and Diana Vernazza, Deputy Attorneys General, 

for Defendants and Respondents.
2

Blaine Carian appeals a postjudgment order denying his motion for attorney fees 

pursuant to Code of Civil Procedure1 section 1021.5. The trial court found he did not 

make a reasonable attempt to settle his dispute before filing the instant action against the 

State of California Department of Fish and Wildlife (Department) and Kimberly Nicol, a 

Department manager (together Defendants). On appeal, Carian contends the trial court 

erred in denying his motion for attorney fees because he gave the Department notice 

before filing his action, any attempt to settle the dispute would have been futile, and he 

satisfied all of the other requirements for an award of attorney fees under section 1021.5.

FACTUAL AND PROCEDURAL BACKGROUND

In 1968, the Legislature enacted a statutory scheme to protect the State's 

ecological reserves to, in turn, protect threatened or endangered native plants, wildlife, or 

aquatic organisms. (Fish & Game Code, §§ 1580 et seq.) Under Fish and Game Code 

section 1580, the Fish and Game Commission (Commission) has the authority to "adopt 

regulations for the occupation, utilization, operation, protection, enhancement, 

maintenance, and administration of [the State's] ecological reserves." Except as the 

Commission's regulations allow, it is unlawful for persons to enter upon any ecological 

reserve.2 (Fish & Game Code, § 1583.)

 

1 All statutory references are to the Code of Civil Procedure unless otherwise 

specified.

2 Fish and Game Code section 1583 provides: "Except in accordance with the 

regulations of the [C]ommission it is unlawful to enter upon any ecological reserves

. . . ."
3

Apparently in or about 1975, the Commission adopted a regulation that designated 

Magnesia Spring Ecological Reserve (Reserve) in Riverside County as an ecological 

reserve. (Cal. Code Regs., tit. 14, § 630(b)(76).) That regulation states in part: "Visitor 

uses are dependent upon the provisions of applicable laws and upon a determination by 

the [C]ommission that opening an area to such visitor use is compatible with the purposes 

of the property. Visitor use is subject to the regulations below, in sections 550 and 550.5 

of these regulations, as well as any other [C]ommission regulations that may apply." 

(Cal. Code Regs., tit. 14, § 630(a).) That regulation further provides that the Department 

owns and operates the Reserve and other ecological reserves listed in the regulation. 

(Cal. Code Regs., tit. 14, § 630(b).) In or about 1976, the Department apparently adopted 

a wildlife management plan for the Reserve, which provided that "[e]nforcement of laws 

pertaining to [the Reserve] should be the responsibility of the Department." In or about 

2007, the Department apparently adopted a multi-species habitat conservation plan, 

which stated that "[u]se of trails on [the Department's] land is subject to [California Code 

of Regulations] Title 14." It also contemplated that the "Bump and Grind" portion (Trail) 

of the Mirage Trail would be decommissioned and removed by the Department in the 

future.

In January 2012, Assembly Bill No. 284 was introduced to enact a statute allowing 

access to the Trail. That bill apparently expired, or "died," pursuant to the California 

Constitution for lack of timely passage. (Cal. Const., art. IV, § 10(c).) In March 2012, a 

new bill, Assembly Bill No. 880, was introduced that contained the same language as the 

prior bill to enact a statute (i.e., Fish & Game Code, § 1587) allowing access to the Trail. 
4

Assembly Bill No. 880 was ultimately passed, enacting former Fish and Game Code 

section 1587,3 effective as of January 2013, which provided:

"(a) The Mirage Trail within the [Reserve] shall be open nine 

months of the year to recreational hiking, if the[C]ommission

determines that the following conditions are met: [¶] . . . [¶]

"(b) The [C]ommission shall determine seasonal openings and 

closures of the trail that will not conflict with the use of the area by 

Peninsular bighorn sheep, consistent with subdivision (a). . . ." 

(Former Fish & Game Code, § 1587, italics added.)

On May 15, 2012, Carian filed the instant petition and complaint against 

Defendants, alleging causes of action for a writ of mandate directing the Department to 

reopen the Trail, taxpayer relief, quiet title to public easement, and declaratory relief. 

Defendants demurred to the petition and complaint. The trial court issued a tentative 

ruling sustaining Defendants' demurrer. On August 16, the trial court heard arguments of 

counsel and initially took the matter under submission. However, on September 11, the 

court vacated its order taking the matter under submission and set a further hearing on the 

demurrer, stating that if the Governor signed Assembly Bill No. 880, which had recently 

been passed by both houses of the Legislature, the new law would have a significant 

effect on the demurrer. On September 25, the Governor signed Assembly Bill No. 880, 

which added former section 1587 to the Fish and Game Code. (Stats. 2012, ch. 527, § 1.) 

At the October 15 hearing on Defendants' demurrer, Carian, in effect, conceded the new 

 

3 Fish and Game Code section 1587 was amended in 2013. (Stats. 2013, ch. 76 

(A.B. 383), § 63; Stats. 2013, ch. 594 (A.B. 1097), § 1.)
5

statute made his lawsuit moot. The court sustained Defendants' demurrer without leave 

to amend.

In January 2013, Carian filed a motion for attorney fees under section 1021.5. In 

seeking an award of $100,000 in attorney fees against Defendants, Carian argued that his 

lawsuit was necessary to enforce an important right affecting the public interest and 

conferred a significant benefit on the general public by causing the State to open the 

Trail. In support of his motion, he submitted a declaration of Eli Underwood, his 

counsel, in which Underwood stated that "[b]ecause of this suit, the State of California 

opened the trail." Carian also submitted a declaration of State Assemblyman Brian 

Nestande, in which Nestande stated that Carian's lawsuit "was a material factor, 

demonstrably influential, a substantial contribution, and one of the catalysts in helping to 

get [Assembly Bill No.] 880 codified into law because it helped to focus the Legislature's 

attention on whether the trail needed to be closed the entire year or whether it could only 

be closed a few months out of the year." Carian also submitted a similar declaration of 

State Assemblyman V. Manuel Perez containing a statement identical to Nestande's 

statement quoted above.

Defendants opposed Carian's section 1021.5 motion for attorney fees, arguing

Carian was not a "successful party" under the catalyst theory. Citing Graham v. 

DaimlerChrysler Corp. (2004) 34 Cal.4th 553 (Graham), Defendants argued Carian had 

not made a reasonable attempt to settle the dispute before filing his lawsuit and therefore 

could not recover attorney fees under section 1021.5. Defendants argued Carian did not 

make any reasonable settlement attempt because he "never pursued the established 
6

administrative remedy to resolve his grievance via the Commission (Fish & [Game] 

Code, § 1583) . . . ."

In reply, Carian argued that he made a reasonable attempt to settle the dispute 

prior to filing his lawsuit, citing his October 2011 meeting with Nicol regarding 

reopening the Trail and his February 2012 notice to the Attorney General of his intent to 

seek to reopen the Trail. In support of his reply, Carian submitted his own declaration in 

which he stated he met with Nicol on October 11, 2011, and requested the top portion of 

the Trail be reopened to the public. He further stated that after Nicol initially agreed to 

conditionally reopen the Trail, she purportedly withdrew those conditions in an April 

2012 letter. Carian also submitted Underwood's reply declaration in which he stated that 

on or about February 12, 2012, he conveyed to a deputy attorney general Carian's 

proposal to settle his separate Public Records Act lawsuit against the Department. That 

proposal included terms to reopen the Trail. Underwood stated that when Carian's 

proposal was rejected by the deputy attorney general, Underwood told him the issue 

would be dealt with in a separate suit.

On May 28, 2013, the trial court issued an order denying Carian's motion for 

attorney fees under section 1021.5. The court found Carian "did not make a reasonable 

settlement effort before bringing this lawsuit" and referred to its reasons set forth in its 

attached April 16 ruling, which stated in part:

"More persuasive is [Defendants'] argument that [Carian] failed to 

make a reasonable settlement attempt before bringing the action, 

something that [Carian] argues he did by meeting with respondent 

Nicol and informing her of his interest in reopening the trail and 

informing the attorney general before filing this action. [Carian] 
7

accurately quotes a portion of the Graham opinion stating that at a 

minimum a plaintiff must notify the defendant of his or her 

grievances and proposed remedies and give the defendant the 

opportunity to meet the demands within a reasonable time. 

[Citation.] As the Supreme Court stated, however, 'what constitutes 

a "reasonable" time will depend on the context.' [Citation.] As do, 

in this Court's view, what are reasonable settlement efforts. While in 

some circumstances, such as where a violation of the petitioner's 

rights and the remedy is clear, simple notification and explanation of 

the requested remedy might be sufficient to constitute a reasonable 

settlement effort. But often this will only be a starting point for 

reasonable settlement efforts. Indeed, many cases, particularly cases 

such as this one where the factual background and potential 

settlement are complicated, require more.

"[Defendants] contend[] that [Carian] did not pursue 'an established 

administrative remedy' in an effort to resolve his grievances through 

the Fish and Game Commission. As [Defendants] point[] out, a 

legislative analysis of [Assembly Bill No.] 880 includes the 

comment that the legislation might not have been necessary had 

someone—such as [Carian]—'asked the [C]ommission for its 

assistance on this matter, which seems to be a significant omission 

by the proponents.' [Citation.] The Supreme Court stated that the 

purpose of requiring reasonable settlement efforts is to ensure that 

subsequent litigation is truly necessary: 'Awarding attorney fees for 

litigation when the rights could have been vindicated by reasonable 

efforts short of litigation does not advance that objective and 

encourages lawsuits that are more opportunistic than authentically 

for the public good.' [Citation.]

"[Carian] does not address the substance of this argument, instead 

arguing [Fish and Game Code section 1583] is entitled 'trespass' and 

does not prescribe an administrative remedy.

"[Carian] offers no evidence that it would have been futile to have 

made further settlement efforts, in particular, to have gone to the 

Fish and Game Commission for assistance or that such efforts would 

be, in our Supreme Court's words, 'lengthy pre-litigation 

negotiations.' This Court certainly does not find that in every 

instance a plaintiff must go through a government agency's preferred 

procedures to meet the requirement that it make a reasonable 

settlement attempt. But on the record before it, and given that 

[Carian] failed to even argue that it would have been futile or 
8

excessively time consuming to approach the Commission as 

suggested in the legislative analysis, the Court finds [Carian] failed 

to make a reasonable settlement effort before bringing this lawsuit 

and therefore is not entitled to recover attorney's fees under section 

1021.5." (Italics added, fn. omitted.)

Because the court decided the motion on that ground, it declined to address the remaining 

issues. Carian timely filed a notice of appeal.

DISCUSSION

I

Section 1021.5 and Graham's Catalyst Theory

Under section 1021.5, a trial court may award attorney fees to a "successful party"

in an action that 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. . . ." The 

courts have taken a "broad, pragmatic view of what constitutes a 'successful party.' " 

(Graham, supra, 34 Cal.4th at p. 565.) Section 1021.5 attorney fees may be awarded 

"even when plaintiff's legal action does not result in a favorable final judgment" if there 

is "a causal connection between the plaintiffs' lawsuit and the relief obtained." (Maria P. 

v. Riles (1987) 43 Cal.3d 1281, 1290-1291.) The catalyst theory looks to the "impact of 

the action, not the manner of its resolution." (Folsom v. Butte County Assn. of 

Governments (1982) 32 Cal.3d 668, 685.) "Under the catalyst theory, attorney fees may 

be awarded even when litigation does not result in a judicial resolution if the defendant 
9

changes its behavior substantially because of, and in the manner sought by, the 

litigation." (Graham, at p. 560.) Furthermore, "to be eligible for attorney fees under 

section 1021.5, a plaintiff must not only be a catalyst to defendant's changed behavior, 

but the lawsuit must have some merit . . . and the plaintiff must have engaged in a 

reasonable attempt to settle its dispute with the defendant prior to litigation." (Id. at 

pp. 560-561, italics added.)

Graham's requirement that a plaintiff make a reasonable attempt to settle the 

dispute "is fully consistent with the basic objectives behind section 1021.5," including its 

express requirement that the private enforcement be necessary. (Graham, supra, 34 

Cal.4th at p. 577.) Graham stated:

"Awarding attorney fees for litigation when those rights could have 

been vindicated by reasonable efforts short of litigation does not 

advance that objective and encourages lawsuits that are more 

opportunistic than authentically for the public good. Lengthy 

prelitigation negotiations are not required, nor is it necessary that the 

settlement demand be made by counsel, but a plaintiff must at least 

notify the defendant of its grievances and proposed remedies and 

give the defendant the opportunity to meet its demands within a 

reasonable time. [Citations.] What constitutes a 'reasonable' time 

will depend on the context." (Graham, supra, 34 Cal.4th at p. 577.)

"[S]ettlement efforts (or their absence) are relevant in every case to show that 'the 

necessity and financial burden of private enforcement . . . are such as to make the award 

appropriate . . . . ' [Citation.] In assessing such information in a particular case to 

determine whether private enforcement was sufficiently necessary to justify an award of 

fees, the trial court exercises its equitable discretion in light of all the relevant 

circumstances." (Vasquez v. State of California (2008) 45 Cal.4th 243, 258-259, fn. 
10

omitted, italics added by Vasquez.) However, if the trial court finds that attempts to settle 

the dispute by the plaintiff would have been futile, the plaintiff may not be barred from 

recovering section 1021.5 attorney fees because of the lack of a settlement attempt. 

(Cates v. Chiang (2013) 213 Cal.App.4th 791, 816-817.)

On appeal, we apply the abuse of discretion standard in reviewing a trial court's 

decision whether to award attorney fees under section 1021.5. (Graham, supra, 34 

Cal.4th at p. 578.) In Wal-Mart Real Estate Business Trust v. City Council of San 

Marcos (2005) 132 Cal.App.4th 614, 620, we stated:

"Whether the applicant for attorney fees has proved section 1021.5's 

elements is a matter primarily vested in the trial court. [Citation.] 

'We review the entire record, attentive to the trial court's stated 

reasons in denying the fees and to whether it applied the proper 

standards of law in reaching its decision. [Citation.] We will 

reverse the trial court's decision only if there has been a prejudicial 

abuse of discretion, i.e., when there has been a manifest miscarriage 

of justice or " 'where no reasonable basis for the action is 

shown.' " ' "

A trial court abuses its discretion when it exceeds the bounds of reason given all of the 

circumstances in the case. (Wal-Mart, at p. 625; Denham v. Superior Court (1970) 2 

Cal.3d 557, 566.) Furthermore, in applying the abuse of discretion standard of review, 

we give considerable deference to the trial court, including deference to the trial court's 

reasonable inferences when two or more inferences can reasonably be drawn from the 

record. (In re Woodham (2001) 95 Cal.App.4th 438, 443.)
11

II

Carian's Attempt to Settle the Dispute

Carian contends the trial court erred in denying his motion for attorney fees 

because he gave the Department notice of the dispute before filing his action, any attempt 

to settle the dispute would have been futile, and he satisfied all of the other requirements 

for an award of attorney fees under section 1021.5.

A

At the outset, Carian asserts we should apply the de novo, or independent, 

standard of review rather than the abuse of discretion standard of review because the facts 

are undisputed. We disagree. As discussed above, it is well established that the abuse of 

discretion standard applies in reviewing a trial court's decision whether to award a 

plaintiff section 1021.5 attorney fees. (Graham, supra, 34 Cal.4th at p. 578; Wal-Mart 

Real Estate Business Trust v. City Council of San Marcos, supra, 132 Cal.App.4th at 

p. 620.) Even assuming the underlying facts are undisputed, it remains the trial court's 

duty to consider those facts and the circumstances of the case and exercise its discretion 

in determining whether the requirements were satisfied for an award of attorney fees 

under section 1021.5, and we can reverse the court's determination only if there is no 

reasonable basis for it. (Wal-Mart, at p. 620.) Furthermore, in reviewing the trial court's 

decision, we defer to its reasonable inferences when two or more inferences can 

reasonably be drawn from the undisputed facts. (In re Woodham, supra, 95 Cal.App.4th 

at p. 443.)
12

B

Carian asserts the trial court erred by denying his motion for section 1021.5 

attorney fees based on its finding he did not make a reasonable attempt to settle the 

dispute before filing his action against Defendants.4 He argues his pre-lawsuit notice to 

Defendants met Graham's requirements for making a reasonable attempt to settle the 

dispute as a matter of law. Based on our reading of Graham, we conclude Carian 

misinterprets and/or misapplies its standard for reasonable attempts to settle under section 

1021.5. In describing that requirement, Graham stated in part: "[A] plaintiff must at least 

notify the defendant of its grievances and proposed remedies and give the defendant the 

opportunity to meet its demands within a reasonable time." (Graham, supra, 34 Cal.4th 

at p. 577, italics added.) However, we, like the trial court, conclude the qualifying 

language "at least" does not equate with "at most," as Carian apparently suggests. 

Alternatively stated, we disagree with Carian's apparent assertion that a plaintiff 

necessarily makes a reasonable attempt to settle when he or she simply notifies the 

defendant of the grievance and proposed remedies, and that nothing more is required to 

be done by the plaintiff. On the contrary, we believe the trial court correctly viewed 

Graham's statement as a "starting point" in its determination of whether Carian made a 

reasonable attempt to settle the dispute in the circumstances of this case. In Vasquez, the 

 

4 By arguing he satisfied the requirements for section 1021.5 attorney fees under the 

catalyst theory, Carian apparently concedes, as he must, that he was not the prevailing 

party in his action against Defendants. As noted above, the trial court sustained 

Defendants' demurrer to Carian's complaint without leave to amend.
13

court expressly stated that in determining whether private enforcement was sufficiently 

necessary to justify an award of section 1021.5 attorney fees, "the trial court exercises its 

equitable discretion in light of all of the relevant circumstances." (Vasquez v. State of 

California, supra, 45 Cal.4th at pp. 258-259, fn. omitted.) In exercising its discretion 

whether to award a plaintiff section 1021.5 attorney fees, a trial court must consider not 

simply whether the plaintiff notified the defendant of the dispute before filing the lawsuit, 

but also must consider all of the relevant circumstances in the case in determining 

whether the plaintiff made a reasonable attempt to settle the dispute before filing the 

lawsuit. (Id. at pp. 258-259; Graham, at pp. 560-561, 577.) Therefore, contrary to 

Carian's assertion, we conclude the trial court applied the correct legal standard in 

determining whether he made a reasonable attempt to settle the dispute before filing his 

lawsuit against Defendants.

We also reject Carian's assertion the trial court erred by finding he did not make a 

reasonable attempt to settle the dispute in the circumstances of this case. As discussed 

above, the record shows Carian met with Nicol in October 2011 regarding reopening the 

Trail; his counsel met in February 2012 with a deputy attorney general who rejected 

Carian's request to reopen the Trail and was then informed Carian would deal with it in a 

lawsuit separate from his pending public records lawsuit. For purposes of this opinion, 

we assume arguendo that Defendants had, at least, some notice of Carian's dispute 

regarding reopening the Trail before he filed the instant action. Contrary to Carian's 

assertion, his notice to Defendants did not also constitute notice to the Commission 

and/or the State for purposes of section 1021.5 attorney fees. As Defendants assert, 
14

California's state agencies are distinct and separate governmental entities and therefore 

notice to one does not constitute notice to all. (See, e.g., Marine Forests Society v. 

California Coastal Com. (2005) 36 Cal.4th 1, 48-49; People ex rel. Lockyer v. Superior 

Court (2004) 122 Cal.App.4th 1060, 1076-1080; People v. Superior Court (Barrett)

(2000) 80 Cal.App.4th 1305, 1317.)

However, as stated above, mere notice to a potential defendant is not necessarily 

sufficient to meet Graham's requirement for a reasonable attempt to settle a dispute 

before filing a lawsuit. In deciding that issue, the trial court properly considered all of the 

circumstances in this case, including whether Carian's lawsuit was necessary to obtain the 

changes or relief he sought (i.e., reopening of the Trail). One of the circumstances the 

trial court considered was whether the Department was the only party Carian should have 

contacted and made his request for reopening the Trail. The court concluded Carian 

should also have contacted the Commission, which has the ultimate authority under 

applicable statutes to allow or disallow access to the Trail, and not just the Department, 

which merely enforces the regulations the Commission adopts. (Fish & Game Code, 

§§ 1580, 1583.) Under that statutory scheme, the Commission adopted a regulation that 

designated the Reserve (which includes the Trail) as an ecological reserve. (Cal. Code 

Regs., tit. 14, § 630(b)(76).) That regulation states in part: "Visitor uses are dependent 

upon the provisions of applicable laws and upon a determination by the [C]ommission

that opening an area to such visitor use is compatible with the purposes of the property. 

Visitor use is subject to the regulations below, in sections 550 and 550.5 of these 
15

regulations, as well as any other [C]ommission regulations that may apply." (Cal. Code 

Regs., tit. 14, § 630(a), italics added.)

Based on the statutory and regulatory scheme for California's ecological reserves, 

including the Reserve and the Trail, we conclude the trial court properly determined 

Carian should have contacted the Commission and requested that it adopt regulations 

allowing access to the Trail before he filed the instant action against the Department and 

Nicol. The trial court could have reasonably concluded that had Carian contacted the 

Commission before filing his action, then private enforcement (i.e., his action against 

Defendants) may not have been necessary to obtain the changes he sought (i.e., reopening 

of the Trail), and therefore Carian did not meet the requirements for an award of section 

1021.5 attorney fees. (§ 1021.5; Graham, supra, 34 Cal.4th at p. 577; Vasquez v. State of 

California, supra, 45 Cal.4th at pp. 258-259.) Contrary to Carian's assertion, the trial 

court reasonably cited as support for its conclusion the legislative analysis of Assembly 

Bill No. 880 that indicated the legislation might not have been necessary had someone 

(e.g., Carian) contacted the Commission about the issue.

We reject Carian's argument that he did not have to contact the Commission 

regarding the dispute because Nicol (or other persons with or on behalf of the 

Department) purportedly asserted the Department had the authority to reopen the Trail. 

The trial court could have concluded that a reasonable plaintiff's attorney would have 

researched the statutory and regulatory scheme for ecological reserves before filing a 

lawsuit to reopen the Trail and, in so doing, presumably would have learned the 

Commission, and not the Department, has the authority to adopt regulations to allow or 
16

disallow access to the Trail. Therefore, the court could have concluded Carian 

unreasonably relied on the purported representations regarding the Department's 

authority. Furthermore, even assuming the Department possesses certain discretion to 

allow access to the Trail, that authority would not necessarily preclude other government 

agencies or entities (e.g., the Commission) from having concurrent authority, and even 

greater authority, to allow access to the Trail. Therefore, the trial court properly 

concluded Carian did not make a reasonable attempt to settle the dispute because he did 

not contact the Commission and request specific changes be made regarding access to the 

Trail before filing the instant action. None of the cases cited by Carian (e.g., Connerly v. 

State Personnel Bd. (2006) 37 Cal.4th 1169; Friends of the Trails v. Blasius (2000) 78 

Cal.App.4th 810) are apposite to this case or otherwise persuade us to reach a contrary 

conclusion.

C

Finally, Carian asserts the trial court erred by finding, in effect, he waived any 

argument that it was futile for him to attempt to settle the dispute by contacting the 

Commission because the Commission's response would have been the same as the 

Department's response (i.e., rejection of his request). In denying Carian's section 1021.5 

attorney fee motion, the trial court found in part: "[Carian] offers no evidence that it 

would have been futile to have made further settlement efforts, in particular, to have gone 

to the Fish and Game Commission for assistance." (Italics added.) As Defendants assert, 

Carian waived any futility argument by not raising it below. (Resolution Trust Corp. v. 

Winslow (1992) 9 Cal.App.4th 1799, 1810.) In any event, even had he raised that issue 
17

below, he did not, as the trial court found, submit any evidence below showing that any 

notice or other contact to the Commission would have been futile. Carian's arguments on 

appeal that any notice or contact to the Commission would have been futile are 

speculative and not supported by any evidence in the record. We conclude the trial court 

properly found Carian, in effect, waived any futility argument and/or did not carry his 

burden to prove any attempt to settle the dispute by contacting the Commission would 

have been futile. Cates v. Chiang, supra, 213 Cal.App.4th 791, cited by Carian, is 

factually inapposite to this case and does not persuade us to reach a contrary conclusion.

D

Because we conclude the trial court properly found Carian did not make a 

reasonable attempt to settle the dispute before filing his action against Defendants and 

therefore did not meet that requirement for an award of section 1021.5 attorney fees, we 

need not, and do not, address his argument that he satisfied all of the other requirements 

for an award of attorney fees under section 1021.5.

DISPOSITION

The order is affirmed.

McDONALD, J.

WE CONCUR:

NARES, Acting P. J.

HALLER, J.