Is a plaintiff entitled to attorney fees under the catalyst theory?

I can perceive of few things less useful to society than generating great amounts of attorney fees litigating the catalyst theory. In another attorney fee case, we stated that "scarce judicial resources should not be used to try the merits of voluntarily dismissed actions merely to determine which party would or should have prevailed had the action not been dismissed." (Santisas v. Goodin (1998) 17 Cal.4th 599, 621, 71 Cal.Rptr.2d 830, 951 P.2d 399.) In this case, scarce judicial resources should not be used to litigate the various requirements of the catalyst theory.¹³

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The majority argues the catalyst theory is needed to eliminate risk in public interest litigation. (Maj. opn., ante, 21 Cal.Rptr.3d at p. 348, 101 P.3d at p. 154.) But there will always be risk. Indeed, one of the requirements for any plaintiff seeking attorney fees is that the plaintiff must have attempted to settle the dispute without litigation. (Grimsley v. Board of Supervisors (1985) 169 Cal.App.3d 960, 966, 213 Cal.Rptr. 108; see maj. opn., ante, 21 Cal.Rptr.3d at pp. 348-49, 101 P.3d at pp. 154-55.) Carried to its logical conclusion, however, the majority's catalyst rationale should extend to attorney fees expended in seeking relief short of litigation. If the threat of litigation causes the prospective defendant to provide the relief sought, why should attorney fees be denied merely because no lawsuit was needed? Denying attorney fees when the desired result is obtained without a lawsuit can deter those plaintiffs who will have to expend attorney fees that they may never recover. Yet even the majority is forced to admit that no one can be deemed to be a successful party without a lawsuit. (Maj. opn., ante, 21 Cal.Rptr.3d at pp. 343-44, 101 P.3d at p. 150.)

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