In Travis v. Brand, the Supreme Court today holds that defendants who defeat lawsuits against them under California’s Political Reform Act of 1974 can recover attorney fees only if the superior court “ ‘finds the action was objectively without foundation when brought, or the plaintiff continued to litigate after it clearly became so.’ ” This is necessary, the opinion says, because “[m]aximizing the number of meritorious suits through the Political Reform Act’s private enforcement mechanism is of primary importance,” while defending against a non-frivolous action “is fairly characterized ‘as a cost of political participation.’ ”

The plaintiffs in the case had unsuccessfully claimed the Act had been been violated by mislabeling as a “general purpose committee” what was in fact a “primarily formed committee” (i.e., one formed to support a particular ballot measure) and by not disclosing that the committee was “controlled” by a candidate. The defendants were awarded almost $900,000 in fees and costs.

The court’s unanimous opinion by Chief Justice Patricia Guerrero — her first as a Supreme Court justice — concludes that, even though the pertinent attorney provision of the Act is facially neutral on the issue (the statute says “[t]he court may award [attorney fees] to a plaintiff or defendant who prevails”), it should be interpreted “to impose an asymmetrical standard, which constrains the trial court’s discretion to award attorney’s fees to a prevailing defendant.” This is the same standard the court applied in actions alleging violations of the California Fair Employment and Housing Act. (Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97; see here.)

The court reverses the Second District, Division Eight, Court of Appeal’s published opinion. The superior court did find the lawsuit “ ‘was frivolous, unreasonable and groundless,’ ” but Division Eight affirmed the attorney fee award simply because the defendants were the prevailing parties, regardless of whether the action was frivolous. The appellate court disagreed, and the Supreme Court agrees, with a 1986 Fourth District, Division One opinion and a 1987 decision by the First District, Division Three.